Citation Nr: 22052257 Decision Date: 09/14/22 Archive Date: 09/14/22 DOCKET NO. 18-43 009A DATE: September 14, 2022 ORDER 1. Challenges to the propriety of the creation of an overpayment in the amount of $75,972.39 are granted insofar that the portion of this debt in the amount of $52,780.04 is invalidated as improperly created, while the remaining portion of the overpayment in the amount of $23,192.35 remains charged. 2. Claim for a waiver of recoupment of the $23,192.35 portion overpayment is granted in part, insofar that the debt is reduced by $3,192.35 down to $20,000. FINDINGS OF FACT 1. The portion of the overpayment in the amount of $57,289.04 was created due to the combined effect of delay on the part of the Department of Veterans Affairs (VA), Regional Office (RO), and the Veteran's ex-spouse, A.G., expressly misrepresenting the fact that VA continued disbursements of his compensation benefits after 60 days of the Veteran's incarceration because A.G. was withdrawing the Veteran's VA compensation benefits (deposited on the Veteran and A.G.'s joint bank account) for use by A.G. and the Veteran and A.G.'s emancipated daughter, T.G., who falsely confirmed A.G.'s express and repeated misrepresentations. 2. A waiver of the $23,192.35 overpayment debt is against principles of equity and good conscience, while a waiver of the $3,192.35 portion of this debt is not. CONCLUSIONS OF LAW 1. The criteria for invalidation of the $52,780.04 portion of the $75,972.39 overpayment have been met, while the criteria for invalidation of the $23,192.35 ($75,972.39 $52,780.04) portion of the same $75,972.39 overpayment have not been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.500. 2. The criteria for a waiver of $23,192.35 overpayment debt have not been met, while the criteria for a waiver of $3,192.35 portion of this debt have been met. 38 U.S.C. § 5302; 38 C.F.R. § 1.965. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is service connected for posttraumatic stress disorder in addition to being service connected for multiple physical disabilities, is a military retiree who had active duty from May 8, 1984, to May 31, 1997, i.e., for over 13 years, and following his separation from service was awarded service connection for the aforesaid disabilities that yielded a total disability rating based on the Veteran's individual unemployability (TDIU) effective April 13, 2001. These matters come before the Board of Veterans' Appeals (Board) on the Veteran's appeal from a November 2017 decision issued by the VA Committee on Waivers and Compromises (COWC) that, in turn, built on the July 2017 final action notice allegedly issued by the RO. The Board notes that the Veteran's claims file lacks numerous documents relevant to the inquiry at hand, but regardless of this unfortunate deficiency the record is sufficient to allow adjudication of his claims on appeal. Generally, a challenge to a debt arising from VA overpayment may but not must encompass up to three claims, i.e., a challenge to the propriety of the creation of the overpayment, a challenge to the amount of the overpayment, and the claim for a waiver of the overpayment debt. Johnson v. Wilkie, No. 19-5789, 2020 U.S. App. Vet. Claims LEXIS 1205, at *5 (Vet. App. June 25, 2020) (mem. dec.); see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge memorandum decisions may be relied upon for any persuasiveness or reasoning they contain). Notably, the two-pronged test for a so-called "sole administrative error" is part and parcel of addressing challenges to the propriety of the creation of an overpayment, but it's first prong poses an inquiry similar to that posed by the first element of the analysis governing a claim for a waiver of an overpayment. The concept of a sole administrative error implies an error that is neither a garden-variety clerical error nor an error that turns on balancing VA's fault against the fault of the debtor. The key word in the phrase "sole administrative error" is the word "sole," not "administrative." For a determination that an overpayment arose from a sole administrative error on the part of VA, a debtor must establish that his/her actions or failure to act neither caused nor contributed to the debtor's receipt of the benefit at issue, and in addition that the debtor neither knew nor should have known that the benefits at issue were disbursed in error. 38 U.S.C. § 5112(b)(9), (10); 38 C.F.R. § 3.500(b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997). In contrast, the "equity and good conscience" standard implicated by the waiver analysis on the merits requires the Board to assess all relevant considerations, i.e., whether the debtor's fault is outweighed by VA's fault in terms of causing the creation of his/her VA overpayment (the balance-of-fault element), whether the debtor has changed his/her position for the worse in reliance on the VA benefits by, e.g., declining a job opportunity or taking a loan (the reliance element), whether his/her failure to make restitution would result in the debtor's unfair gain (the unjust-enrichment element), if the recoupment of the debt would deprive the debtor of basic life necessities, such as basic food, basic shelter, and basic clothing (the financial-hardship element), if the recoupment would nullify the objectives of VA benefits underlying the award (the nullification element), etc. 38 U.S.C. § 5302; 38 C.F.R. § 1.965(a). Generally, while the sole-administrative-error analysis and the balance-of-fault element of the equitable waiver analysis often reflect on the same evidence, these analyses present distinct and different tests. However, these two inquiries may overlap in a unique scenario defined in Shephard v. Shinseki, 26 Vet. App. 159 (2013), and also touched upon in passing in Dent v. McDonald, 27 Vet. App. 362 (2015), two precedential opinions issued by the U.S. Court of Appeals for Veterans Claims that guide the Board's analysis here. In Shephard, a veteran notified the RO that her ex-husband was withdrawing the overpaid funds that VA was depositing on their joint bank account, and she was unable to remove him from their bank account due to her being placed in confinement, but VA still continued the deposits until the ex-husband withdrew over $63,000, spent all these funds, and then declared bankruptcy, thus leaving the veteran solely with the debt and without any use of the deposited funds or a meaningful ability to sue her ex-husband since he had become effectively judgement-proof and, in addition, the period of limitations to sue her ex-husband had already expired by the time when the veteran was release from confinement. Reflecting on the RO's undue delay with reduction in the amount of the veteran's benefits to the amount payable to an incarcerated veteran in her circumstances, the Shephard Court observed that where the RO's delay exceeded the period of two and a half years and had a debt-accruing effect the overpayment debt should be examined as if it were a combined debt arising from two subperiods, i.e., one running from the date when the overpayment began to the date when the RO could have reasonably acted upon receipt of information about the veteran's incarceration, and the other running from the date following the date of such a hypothetical reasonable action by the RO to the date of the RO's actual final action that stopped the overpayment from accruing. Critical here, the Shephard Court also noted that this consideration, while pertinent to the balance-of fault element of the equitable waiver analysis, could be perceived as also relevant to the inquiry as to whether each portion of the overpayment was properly created. Hence, the Shephard Court suggested that that an inquiry into the propriety of the creation of an overpayment might have an intermediary step inserted between the threshold inquiry as to whether the debtor was altogether entitled to the funds at issue and the sole-administrative-error analysis, and this intermediary step applies where distinct subperiods in the period underlying the creation of an overpayment could be detected, i.e., one subperiod was not marked by VA's undue laxness, while the other subperiod was marked by accrual of the debt arising from undue, i.e., years-long VA's delay after VA was notified of the relevant developments and could but did not act. The circumstances addressed in Dent could be construed as related to those in Shephard in terms of determining whether the debtor's fault was minimized by evidence of objective ignorance of the fraud perpetrated by the third party. Simply put, while the second prong of the sole-administrative-error analysis contains both a subjective test, i.e., a test looking at what the debtor actually knew, and an objective test, i.e., a test looking at what a reasonable person standing in debtor's shoes should have known (and the relevant law is presumed known, even if the debtor is subjectively ignorant of law), Dent provides insights relevant to both tests. In Dent, the veteran was awarded a VA pension based on his monthly income and was informed that he was responsible for notifying VA if his income changed. When the veteran began receiving SSA benefits, he sent the SSA's letter to VA with his last VA pension check marked "void." VA did not respond and continued to disburse him pension payments, which he received and cashed. The Dent Court held that the veteran knew he was overpaid, and with unjustified ignorance of his knowledge he still continued to cash VA checks for their full amount, and such a knowing receipt and use of the funds contributed to the creation of his overpayment. Accord Sloan v. McDonough, No. 21-3122, 2022 U.S. App. Vet. Claims LEXIS 1170 (July 25, 2022) (the rationale of Dent speaks to the debtor's knowledge via a constructive notice of being overpaid and supports the finding that the debtor contributed to the overpayment by taking possession of the excessive funds without any attempt to clarify the basis for disbursements of the funds and without any attempt to return the excess funds). With these considerations in mind, the Board now turns to the facts in this case, which are similar to those in Shephard. Here, the Veteran married A.G. in July 1990. In July 1992, they welcomed a daughter, T.G. who became emancipated in July 2000, and one year later the Veteran was awarded a TDIU rating. With that, his income became limited to $400-per-month military pension and VA compensation benefits corresponding to those payable for a 100 percent combined rating. The Veteran and A.G., being in a long marital relationship, had a joint bank account, and the record suggests that A.G. was also making her own income that, seemingly, was analogously deposited on their joint bank account. In other words, the Veteran and A.G. had a relationship built on mutual trust. About 14 years later, the Veteran committed a series of felony offences arising from a single incident of his confrontation with a law enforcement officer. Thus, the Veteran was charged with assault of the officer and two related felony offences that are unspecified in the record or in the Veteran's public file maintained by the Missouri Department of Corrections (MODOC). Taking judicial notice of the Veteran's MODOC record and reading it jointly with the evidence of record, the Board acknowledges that on February [REDACTED], 2015, the Veteran entered post-conviction confinement, after being found guilty on all three felony charges and sentenced to three concurrent terms of imprisonment, each of 15 years. Given that the Veteran's terms of imprisonment were imposed to run concurrently, he should be released on February [REDACTED], 2030, the latest, that is, (unless his concurrently running prison terms have been credited by his period of pretrial incarceration, meaning that if the Veteran was not released on bail right upon his arrest based on the charges underlying his conviction or if his bail was revoked prior to February [REDACTED], 2015 this period of pretrial confinement would be deducted from the Veteran's 15-year prison term). The Veteran's February [REDACTED], 2030, release is, but of course, predicated on the Veteran not committing and/or not being convicted of additional criminal offenses, be they past or future offenses. Further, since the Veteran's concurrent periods of incarceration would run for less than 45 years, he should have been eligible for a parole hearing after serving five years in confinement, i.e., by February 2020 (or earlier, if he was in pretrial incarceration prior to February [REDACTED], 2015). Given that, at the time when this decision is being drafted, MODOC records show that the Veteran still remains in penal confinement, the Veteran was seemingly denied parole in early 2020 or prior and, if he reapplied for parole in early 2022 or about two years after his first parole application was denied (since parole applications are typically permitted to be filed every two years), the Veteran was also denied parole in 2022. Hence, the record is consistent with a presumption that the Veteran's release on parole, even if feasible, is unlikely to take place prior to early 2024, and he might remain in confinement even until February [REDACTED], 2030. Notably, while the above events were taking place, another chain of unfortunate events also took place. Specifically, in March 2015, that is, during the month following the Veteran's February 2015 conviction and incarceration, A.G. divorced the Veteran. Moreover, taking advantage of the fact that she continued having access to her and the Veteran's joint bank account, A.G. began withdrawing all the funds already on the account and then continued withdrawing everything that was deposited, i.e., the Veteran's disability compensation benefits and his military pension. And A.G. misrepresented to the Veteran that as of April 2015 VA compensation benefits were stopped from being deposited on their joint bank account. Then, in 2017, i.e., after the Veteran's VA benefits had already been downwardly adjusted by VA, A.G. mailed the Veteran a letter (that has been associated with the Veteran's claims file) admitting that she kept withdrawing his VA benefits and military pension. In her letter to the Veteran, A.G. sought to justify her actions by asserting that she needed his VA benefits and military pension to provide them to T.G. because T.G. and her fiancé were, allegedly, having persistent arguments that threatened their relationship, and A.G. believed that gifts of the Veteran's money to T.G. might remedy the frictions between T.G. and her fiancé. In conjunction with filing A.G.'s admissions to financial impropriety, the Veteran reported that T.G. was aiding and abetting A.G. in her wrongful actions by assuring the Veteran that A.G.'s statements (i.e., that no VA funds were disbursed on their bank account since April 2015) were true, even though T.G. indeed knew that A.G.'s statements were false. The Board finds the Veteran's statement credible. The Board also acknowledges that the Veteran asserted that he had repeatedly written to the bank holding his and A.G.'s joint account with requests to remove A.G. from the account, but the Veteran's requests were ignored by the bank. The Board finds the Veteran's statements to that effect also credible because, even if the Veteran was the primary holder of the bank account, such a removal of A.G. from the bank account might be easy in person and, potentially but highly unlikely, feasible by dialing the bank's toll-free "800" number, but such a removal is impossible by mail. Further, the Board acknowledges that the Veteran tried to communicate with VA in connection with the instant matter and repeatedly explained to the RO officers that he could not dial any toll-free "800" number from the prison where he was and still is serving his penal sentence. The RO responded to the Veteran with a letter acknowledging that the Veteran had informed the RO that he had as the RO put it "no access" to a toll-free "800" number at the time, but in response the RO informed him that a specific RO officer was assigned to handle the Veteran's requests, and that the Veteran could reach this officer when the Veteran would get access to toll free "800" numbers and call that officer at the officer's toll-free "800" number. The Board notes that telephone calls from correctional facilities are not only monitored/recorded but, in addition, are expensive (with per-minute rates being, technically, capped by the Federal Communications Commission (FCC) at $.21/minute for debit and prepaid calls, and $.25/minute for collect calls, but these telephone rates are also often subjected to much higher rates in state correctional facilities, like the one where the Veteran is held, since FCC's regulations do not preempt state laws). Moreover, phone-calls to toll-free "800" numbers are generally unavailable to prisoners. It follows that the RO's statement that the Veteran could call the RO officer assigned to his case after the Veteran would "get access" to the toll-free "800" number of the officer meant, for all practical purposes, that the Veteran would be able to call the officer only after he gets released from prison, i.e., potentially, in February 2030. Here, upon his incarceration, the Veteran's VA entitlement still remained intact, meaning that once the Veteran is released either to a halfway house or general population, he may start receiving his TDIU monthly VA compensation benefits that are equal, in their amount, to 100 percent benefits, but he must promptly notify the RO of such a release. Meanwhile, while the Veteran remains incarcerated, he is entitled to VA monthly compensation benefits equal in their amount to 10 percent rating, which is at this juncture $152.64 per month for a veteran without dependents, like the Veteran. And, while it is nearly impossible for the Veteran to remove A.G. from their joint bank account while the Veteran remains incarcerated, he can request VA to deposit his VA benefits onto his inmate trust account or onto another bank account held solely by the Veteran. The Veteran selected the latter option in July 2017 and, therefore, reactivated his prior dormant bank account. Notably, in July 2017, the RO issued the Veteran its final action notice that reduced the amount of the Veteran's VA benefits to the amount payable for a 10 percent rating, upon stating that the 61st day of the Veteran's confinement was April 20, 2015. (The RO erred in its calculation of the Veteran's 61st day of confinement that should have been April 19, 2015, since the fact that April 19, 2015, was a weekend day is inapposite to the inquiry at hand. Therefore, for the purposes of its calculations, the Board uses the correct date, i.e., April 19, 2015.) Therefore, effective August 1, 2017, the Veteran began receiving monthly deposits in the amount paid for a 10 percent rating on his reactivated bank account that is unrelated to A.G. Later in August 2017, the Debt Management Center (DMC) informed the Veteran that his overpayment was $80,514.27 because the RO: (a) incorrectly presumed that the overpayment period had run from April 1, 2015, to July 31, 2017, rather than from April 19 or 20, 2015, to July 31, 2015; and (b) factored another overpayment into the RO's calculation (the other overpayment arose from A.G.'s divorce from the Veteran in March 2015 and accrued due to VA's disbursements of the Veteran's upward adjustment based on A.G. as his dependent spouse after the Veteran and A.G.'s divorce). At the end of August 2017, the Veteran requested a waiver of his debt, and in November 2017 COWC granted the Veteran's request to the extent that COWC waived the $5,541.88 portion arising from the Veteran's and A.G.'s March 2015 divorce. However, COWC found that the remaining portion, i.e., $75,972.39 did not warrant a waiver. COWC dedicated the bulk of its August 2017 decision to a discussion of why the Veteran did not commit fraud on VA when A.G. kept fraudulently withdrawing his VA benefits from their joint bank account, as if this aspect was in dispute. In January 2018, the Veteran filed a Notice of Disagreement (NOD). The NOD challenged COWC's decision as to the denial of waiver as to $75,972.39 upon pointing out that the Veteran was not subjectively aware of A.G.'s actions. Thus, while the Veteran's NOD, at the first glance, raised only a waiver claim, the Board finds that on a closer look the NOD contained an embedded challenge to the propriety of the creation of this portion of the Veteran's overpayment within the meaning of Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). In March 2018, the RO issued the Veteran a Statement of the Case (SOC), which in sync with the Veteran's NOD addressed, at the first glance, only his waiver claim, but on a closer look contained an embedded discussion of the propriety of the creation of the $75,972.39 portion of the Veteran's overpayment. The Veteran asserted that upon his entry into post-conviction confinement the Veteran stated to his prison officials that he was a veteran in receipt of VA compensation benefits and completed an unspecified paperwork that the Veteran presumed to be sufficient to notify the RO of his incarceration. The Veteran's impressions and actions to this effect are inapposite to the inquiry at hand because a notice to and any paperwork completed for the purposes of prison officers cannot qualify as notice to the Veterans Benefits Administration (VBA) for the purposes of the claims in this case: since prison officers have no delegated authority to accept notice as to information related to VA compensation benefits. Simply put, written or oral statements (as to entitlement to compensation benefits, be these benefits payments, underpayments, overpayments, changes in financial status, etc.) could be accepted only by those VBA employees who are properly authorized to identify themselves as such and to record the statements in a particular manner. 38 C.F.R. §§ 3.100; 3.217. However, the record also shows that in September 2015 VBA was notified by VA's office operating as a liaison between VA and the Federal Bureau of Prisons (FBOP), plus U.S. states' Departments of Corrections (VA FBOP Office) that the Veteran had been incarcerated based on felony charges effective February [REDACTED], 2015. However, the RO, a part of VBA, did not act on this information. Moreover, in June 2016, i.e., after 16 months of her withdrawals of the Veteran's benefits paid by VA (that had not been reduced) and the Veteran's military pension from their joint bank account, A.G. notified the RO of the Veteran's February [REDACTED] 2015 incarceration by means of a telephonic communication, and an RO officer executed a June 2016 report of general information based on A.G.'s notice. (A.G.'s telephonic notice, as well as A.G.'s remarriage, did not stop A.G.'s withdrawals of the Veteran's VA benefits and military pension from their joint bank account; indeed, A.G. did not confess these withdrawals to the Veteran until after he had already been charged with the overpayment at bar.) In October 2016, the RO was once again notified by the VA FBOP Office of the Veteran's February [REDACTED], 2015, incarceration. However, the RO acted on all this information only in July 2017, when the RO issued the Veteran its final action notice. Generally, if an RO obtains information suggesting that a VA beneficiary was overpaid, the RO first issues a notice proposing to charge the beneficiary with an overpayment and affords him/her 60 days to respond before the RO takes its final action on the RO's proposal (since the final action factors in the beneficiary's response, if such is received). However, if the information about events indicating that the beneficiary was overpaid comes from the beneficiary himself/herself or from a close member of the beneficiary's family, then the RO might dispense with issuance of a proposal notice and proceed to the final action notice since such type of information cannot be subject to the beneficiary's dispute. Here, the Veteran had repeatedly designated A.G. as his closest family member until he was charged with the overpayment and learned of A.G.'s actions. Thus, here, the RO's election not to issue a proposal notice to the Veteran was not an error or a harmless error. It follows that 25 months expired between early September 2015 when the RO was first informed of the Veteran's February [REDACTED], 2015, incarceration and late July 2017 when the RO issued its final action notice and retroactively reduced the amount of the Veteran's VA benefits back to the incorrect April 20, 2015, date, creating the overpayment at bar. True, the gist of Shephard suggests that a delay on the part of an RO warrants a division of the period of the overpayment into two subparts if the delay qualified as an undue one because it is two and a half years or longer. However, since the Shephard Court did not expressly adopt the period of two and a half years as presumptively unreasonable and, instead, this two-and-a-half-year period arose from the facts of Shephard, the Board declines to find that Shephard stands for the hard-and-fast rule that any delay shorter than 30 months is reasonable under every circumstance. Here, factoring in the RO's lack of knowledge as to the Veteran's inability to contact the RO by a toll-free "800" number that the RO kept inexplicably insisting on, and reading the RO's lack of knowledge in light of the Veteran's many written communications evincing his limited command of English language and difficulty with writing, the Board concludes that the 25 month delay warrants a Shephard-like analysis. Therefore, using the September 4, 2015, date of the notice to the RO provided by the VA FBOP Office as the determinative date, the Board finds that the RO could but failed to issue the Veteran a proposal notice in September 2015, triggering his 60 day period to respond. Based on this finding, the Board concludes that the RO could issue the Veteran its final action notice in November 2015. Thus, effective December 1, 2015, the monthly amount of the Veteran's VA benefits should have been reduced to that payable for a 10 percent rate, and his overpayment should have stopped accruing. Accordingly, the portion of the Veteran's overpayment that was properly created was the monthly difference (between the amount payable for a 100 percent rating and that payable for a 10 percent rating) multiplied by the number of days and months from April 19, 2015, to November 31, 2015. This calculation is warranted since the upward adjustment paid to the Veteran based on A.G. as his dependent spouse was waived by COWC, rendering him a veteran without any dependents for the purposes of the inquiry at bar. A single veteran having a 100 percent rating was paid $2,906.83 per month between December 1, 2014, and November 31, 2015, while a single veteran with a 10 percent rating was paid $133.17 per month. Since the period from April 19, 2015, to November 31, 2015, with both end-dates included, contains eight months and 11 days, it means that the Veteran's overpayment was $23,192.35 (($2,906.83 $133.17) x 8 + ($2,906.83 $133.17) x 12 / 365 x 11). It follows that the $23,192.35 portion of the Veteran's overpayment was properly created under Shephard, while the remaining portion, i.e., $52,780.04 ($75,972.39 - $23,192.35) was not. The Board completes the propriety-of-the-creation-of-the-overpayment portion of its analysis by a brief sole-administrative-error analysis. The Veteran failed to meet the first prong of the analysis, given that the Veteran caused the creation of his overpayment. Indeed, even if the Board were to hypothesize that the Veteran did not spend even a day in pretrial incarceration, i.e., that he was both arraigned and released on bail on the date of his arrest (since it is highly improbable that he was released on his own recognizance after assaulting a police officer in Missouri in 2015) and that the Veteran did not plead guilty to the charges and, hence, had at least a vague basis to believe that he would be acquitted at trial, the Veteran could have written to the RO one month after his post-conviction confinement. This is so because prisoners may and are usually required to work in confinement, and while their per-hour payments are extraordinarily low, the Veteran should have had earned the funds needed to purchase a stamp and an envelope after one month of work, even if A.G. and T.G. did not deposit a cent on his inmate trust account. The Veteran did not send such a notice, even though it might have prevented the creation of his overpayment in its entirety. Instead, he elected to rely on A.G., who divorced him in early March 2015. Given that even an uncontested divorce takes months to yield a divorce decree, and A.G. could not have legally divorced the Veteran without him knowing that she was seeking a divorce (since the Veteran had to be served with process, i.e., a summons and complaint, or sign a consent or waiver of service), the Veteran had to know about his upcoming divorce from A.G. many months prior to his conviction. And while the Board acknowledges that the Veteran elected to trust his financial affairs to A.G., being subjectively ignorant of the possibility that she might make fraudulent statements to him and induce T.G. to do the same, and then they would jointly embezzle the Veteran's VA funds and military pension by abusing the fact that the Veteran and A.G. had a joint bank account, the Veteran's subjective ignorance cannot alter the Board's analysis. This is so because a reasonable person standing in the Veteran's shoes would have, at the very least, executed his own mailings to the RO to ensure against any abuse or misinformation by the spouse who elected to divorce him when the Veteran was facing a long incarceration. Thus, a reasonable person would have taken A.G.'s reports that VA "stopped" depositing funds to their joint bank account with a substantial degree of suspicion, especially since VA could not have stopped its disbursements to the Veteran's joint account, rather, VA should have deposited smaller amounts every month. Simply put, applying the holding on Dent by analogy, the Board finds that the Veteran had, at the very least, a constructive notice that A.G. was not a reliable source of information. Correspondingly, the Board declines to find that the Veteran could not have known that he was overpaid from April 19, 2015, to November 31, 2015. Therefore, the Veteran failed to meet both prongs of the sole-administrative-error inquiry as to this period. It follows that his $23,192.35 overpayment was properly created. Moreover, the Board finds it proper to not reframe this finding as a finding that the Veteran is entitled to a waiver of the $52,780.04 portion of his debt. First, even though the Veteran's NOD and the RO's SOC referred expressly only to his waiver claim, the NOD was drafted as if the Veteran's challenges to the propriety of the creation of his overpayment were included in his waiver claim. Second, if the Board were to grant the Veteran a $52,780.04 waiver, this waived amount would qualify as his income, thus obligating the Veteran to declare this income and pay income tax on this amount next April. Since the Federal tax bracket for a single filer's income from $41,776 to $89,075 will be 22 percent as to income earned in 2022, the Veteran could become liable for a substantial tax payment to the Internal Revenue Service (i.e., 22 percent of $52,780.04 or even more, depending on the Veteran's other taxable income since in light of hiss Financial Status Report (FSR) it appears unlikely that he would be able to offset his tax liability by any tax deductions). In other words, the Veteran would have to find means to pay at least $11,611 to the IRS or arrange for installment payments and incur interest costs, meaning that the Veteran might face insurmountable challenges addressing his indebtedness to the IRS. Conversely, because the Board invalidated the $52,780.04 portion of the Veteran's debt as improperly created, he cannot incur any tax obligations based on the Board's finding, which underscores the Court's finding in Schaper that the propriety-of-the-creation-of-an-overpayment analysis must precede that as to a waiver of the resulting debt. Speaking of the latter, the Board now turns to the Veteran's waiver claim that, by definition, became limited to a waiver of his remaining $23,192.35 debt. The balance-of-fault element of this analysis counsels against the Veteran's waiver claim. Indeed, he contributed to the creation of this $23,192.35 overpayment by electing to blindly rely on A.G., even though he knew that she had divorced him when the Veteran was sentenced to a lengthy prison term. While the Board recognizes that the fault was predominantly that of A.G., the fault of A.G. cannot be converted into VA's fault: indeed, the Board has already cut off the $52,780.04 amount related to VA's delay, meaning that no action for which VA might be faulted could be read into the Veteran's $23,192.35 overpayment debt. In sync, the financial hardship element counsels against the Veteran's waiver claim. While the Board acknowledges that the Veteran might prefer to purchase certain items in the prison's canteen or commissary, these items cannot qualify as basic life necessities, such as basic shelter, clothes, food, and medical care. An inmate's needs during the period when (s)he is held in confinement, be it pretrial detention or post-conviction incarceration, i.e., his/her needs in terms of shelter, food, clothes, and medical care, are met as constitutionally guaranteed, and his/her deprivation of such needs is actionable under 42 U.S.C. § 1983 (or under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as to Federal prisoners), entitling him/her to monetary damages for deprivations of these basic rights. The Board acknowledges that the Veteran's applications reflect his concern that, upon release from confinement, the Veteran might experience financial hardship if DMC withholds his VA benefits in full toward recoupment of the Veteran's debt to VA. However, the Board finds this concern speculative. Indeed, the Veteran invites the Board to speculate about the events that might take place in a few years and, potentially, in 2030. The Board declines the invitation. Indeed, even factoring out this pensive fact that humans are mortal, the Board is mindful that: (a) the Veteran will remain in receipt of his $400 monthly military pension; (b) the Veteran reactivated his dormant bank account where his VA benefits have been deposited since August 2017, i.e., for over four years, yielding well over $6,000 in savings, and if the Veteran moved the deposits of his military pension to this account his savings based on the military pension should now be over $19,000, yielding a total of over $25,000 in savings as of now. Thus, even if the Veteran were released as of the time this decision is being drafted, he is likely to have $25,000 in savings, plus $400 in monthly military pension while DMC would recoup his $23,192.35 overpayment in about seven months. And, if the Veteran remains incarcerated, DMC's withholdings toward recoupment of the Veteran's $23,192.35 overpayment would reduce the debt, while the amount of his savings consisting of military pension will keep accruing. It follows that, if the Veteran is released in February 2030, he might have over $60,000 in savings and about $7,500 in debt, meaning that he would be able to pay his debt off in less than two months. Hence, the Veteran's concern that he might be left penniless for two years after his release from incarceration due to DMC's withholding of his VA benefits toward recoupment of the Veteran's debt is not only speculative but also inconsistent with facts at bar and laws of arithmetic. Further, the nullification element cannot be implicated here because the goal of VA compensation is to ensure that veterans maintain standards of living comparable to those of their community. Prior to his incarceration, the Veteran lived in Jackson, Missouri. In 2020, a per capita income in Jackson, Missouri was $32,462. See https://www.census.gov/quickfacts/fact/table/jacksoncountymissouri/PST040221. Since, during the first seven months or less after his release, the Veteran would have between $25,000 and $60,000 at his disposal, plus monthly $400 military pension, and after that the Veteran would have a monthly income of $3,332 or more from VA benefits that are not taxable and $400 military pension, for a monthly total of $3,732 or more (i.e., $44,748 or more per annum), the Veteran would be situated markedly better than an average person in his community. Further, since the Veteran did not assert that he gave up any employment opportunity in reliance on his VA benefits, and his FSR reflects no debts to entities other than VA, the Board finds that the reliance element is either inapposite here or counsels against his waiver claim. The foregoing leaves the Board solely with the unjust-enrichment element of the waiver analysis. Here, this element counsels in the Veteran's favor since the record shows that A.G., not the Veteran, was unjustly enriched by VA overpayment. Admittedly, A.G.'s enrichment was due to the Veteran's gullibility and trust in A.G. and T.G. While the Board recognizes that the Veteran's errors in judgment were based on his long marriage to A.G. and the fact that T.G. was his child, whom the Veteran reared and preferred to believe, these emotional considerations have no substantial weight. (Continued on the next page) That said, the Board is mindful that the waiver analysis is equitable, and all considerations relevant to equities should be factored in as dictated by the unique circumstances of each case. Here, the Board concludes that the spirit of equities warrants a small partial waiver of the Veteran's debt. Hence, the Board finds it appropriate to reduce the Veteran's properly created $23,192.35 portion of his overpayment by $3,192.35, i.e., down to $20,000. Thus, a waiver in the amount of $3,192.35 is granted. Such a waiver is likely to subject the Veteran to a tax liability of $319 only, which is likely to be a manageable debt to the IRS. See https://www.debt.org/tax/brackets/. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.