Citation Nr: A24071908 Decision Date: 11/05/24 Archive Date: 11/05/24 DOCKET NO. 220407-237319 DATE: November 5, 2024 ORDER Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the remaining amount of $2,928.00, is granted. FINDING OF FACT Recovery of the remaining overpayment at issue would be against equity and good conscience. CONCLUSION OF LAW The criteria for a waiver of recovery of the remaining overpayment of VA compensation benefits in the amount of $2,928.00, have been met. 38 U.S.C. § 5302; 38 C.F.R. § 1.965. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1984 to July 2004. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2022 decision of the Committee on Waivers and Compromises (Committee) at a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). This decision considered the Veteran's request for waiver of recovery of an overpayment of VA compensation benefits in the total amount of $17,904.01, which resulted from a retroactive change in dependency status. The Committed granted a partial waiver of that debt in the amount of $14,976.01, and denied waiver of the remaining portion of the debt ($2,928.00). In April 2022, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), identifying the January 2022 decision and electing the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2022 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after that decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Waiver of Overpayment In a May 2006 letter, the RO advised the Veteran that he had been awarded VA compensation benefits, with an additional allowance for his dependents, including for C., his spouse. He was advised that he was required to notify the RO right away if there was any change in the status of his dependents. The Veteran was also provided a VA Form 21-8764 which indicated that the failure to notify the RO in a prompt fashion of a dependency change would result in an overpayment. In March 2008, the Veteran's spouse C. died. He maintains that he notified VA of her death and filled out the appropriate forms, to include changing his beneficiary from C. to his daughter. C. was also a veteran, and her file reflects her death date of March 2008. C. was not removed from the Veteran's award. In January 2010, the Veteran and S. married, but he did not notify VA of the marriage. In a May 2021 letter, the RO advised the Veteran that he was in receipt of additional compensation for his spouse, C. He was asked to confirm the status of his dependents or advise VA of any changes. The record contains a Report of General Information documenting a June 2021 telephone call in which the Veteran called VA to report that C. had died in March 2008. Later that month, he submitted a copy of his marriage certificate to S. In a June 2021 letter, the RO advised the Veteran that C. had been removed from his award effective April 1, 2008. In an August 2021 letter, the RO notified the Veteran that S. had been added to his award effective June 9, 2021 (the date he notified VA of the marriage). The retroactive adjustment in the Veteran's additional dependency allowance resulted in an overpayment totaling $17,904.01. The Veteran timely requested a waiver of the debt. The January 2022 Committee decision determined that there was no fraud, misrepresentation, or bad faith on the Veteran's part with respect to the creation of the overpayment at issue. The Committee also waived the portion of the debt for the period that the Veteran was married to S, finding that he would not be unjustly enriched for this period as he had been eligible for benefits for a dependent spouse. The Board is bound by favorable findings absent clear and unmistakable evidence. Turning to the question of whether waiver of the remaining portion of the debt is warranted, VA law provides that recovery of overpayment of any benefits shall be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the person or persons having an interest in obtaining the waiver and recovery of the indebtedness from the payee who received such benefits would be against equity and good conscience. 38 U.S.C. § 5302; 38 C.F.R. § 1.963 (a). The standard "Equity and Good Conscience" will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the government's rights. In making this determination, consideration will be given to the following elements, which are not intended to be all-inclusive: (1) Fault of the debtor. Where actions of the debtor contribute to the creation of the debt. (2) Balancing of faults. Weighing fault of the debtor against VA fault. (3) Undue hardship. Whether collection would deprive debtor or family of basic necessities. (4) Defeat the purpose. Whether withholding of benefits or recovery would nullify the objective for which benefits were intended. (5) Unjust enrichment. Failure to make restitution would result in unfair gain to the debtor. (6) Changing position to one's detriment. Reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation. See 38 U.S.C. § 5302; 38 C.F.R. § 1.965 (a). With regard to fault, a claimant who is receiving compensation is required to report to the VA any material change or expected change in income or other circumstance that affects the payment of benefits. 38 C.F.R. § 3.660. An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. 38 C.F.R. § 1.962. In this case, the Veteran has credibly reported that he notified VA that his spouse, C., had died. Moreover, C. was also a veteran, and the record reflects that, regardless of whether the Veteran notified the RO of C.'s death, that information was in its possession. In balancing the fault in the creation of the debt, the Board finds that VA bears fault. In regard to whether failure to collect would cause unjust enrichment to the debtor, the Veteran received benefits to which he was not entitled. The remaining portion of the debt corresponds to the period in which the Veteran was not married and therefore not entitled to additional compensation for a spouse. Thus, failure to recover this amount would result in unjust enrichment to the Veteran. There is no indication that the Veteran's reliance on VA benefits resulted in relinquishment of another valuable right. As to whether recoupment of those benefits would defeat the purpose of the benefit, the Board finds that it would not since the Veteran was not married for the portion of time of the debt remains. The Board has also considered whether the Veteran would suffer undue financial hardship if forced to repay the debt at issue. The financial status report submitted by the Veteran in support of his waiver request is incomplete. He provided no income, expense, or asset information. Thus, there is no basis upon which to find financial hardship and the Veteran has not argued otherwise. After considering all the elements, the Board finds that a waiver is warranted because the element of fault is being accorded more weight. The Veteran is credible in his statements that he notified VA of C.'s death and the record reflects that VA failed to take action upon receiving information of C.'s death. Accordingly, a waiver of the recovery of the remaining debt is warranted. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Connolly, Jacqueline 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.