Citation Nr: A25053772 Decision Date: 06/20/25 Archive Date: 06/20/25 DOCKET NO. 240219-513510 DATE: June 20, 2025 ORDER As the Veteran's request for waiver of recovery of an overpayment of educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Chapter 33 or the Post-9/11 GI Bill) in the total calculated amount of $3,216.69 was not timely filed, the appeal is DENIED. FINDINGS OF FACT 1. On April 7, 2016, a Department of Veterans Affairs (VA) Regional office mailed correspondence to the Veteran, notifying him of an overpayment of Chapter 33 educational assistance benefits as result of the Veteran's termination of his enrollment. 2. On May 11, 2016, the VA Debt Management Center (DMC) mailed correspondence to the Veteran, notifying him that debts resulting from overpayment of Chapter 33 educational assistance benefits had been created; the letters included information regarding his right to dispute the debt and to request a waiver. 3. The Veteran's request for waiver of recovery of the overpayment of VA educational assistance benefits in question was received on October 25, 2023, more than 180 days after the May 11, 2016, correspondence. CONCLUSION OF LAW A timely request for waiver of recovery of overpayment of Chapter 33 educational assistance benefits in the amount of amount of $3,216.69, was not received. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b). FACTUAL AND PROCEDURAL BACKGROUND The Veteran served on active duty in the United States Army (U.S. Army) from March 2009 to April 2010. The Veteran had additional service the U.S. Army National Guard. The case is on appeal to the Board of Veterans' Appeals from a January 2024 VA Committee on Waiver and Compromises (COWC) decision that denied the Veteran's request for a waiver of indebtedness resulting from an overpayment of VA educational assistance benefits under Chapter 33 as the request was filed more than 180 days from the May 2016 first notice of debt. In the February 2024 Notice of Disagreement (NOD or VA Form 10182), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ 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. In the February 2024 VA From 10182, the Veteran also appealed two September 2023 rating decisions that denied service connection for hearing loss, a psychiatric disorder, breathing issues, and a right lower extremity disability. In a March 2025 decision, the Board addressed those 4 issues separately and granted service connection for bilateral hearing loss and denied the claim of service connection for an acquired psychiatric disorder. The Board also remanded the issues of service connection for breathing issues and a right lower extremity disability to cure pre-decisional duty to assist errors. Accordingly, the only matter before the Board at this time from the Veteran's February 2024 NOD is the issue of a request for a waiver of indebtedness resulting from an overpayment of educational assistance benefits under Chapter 33. REASONS AND BASES FOR THE FINDINGS AND CONCLUSION Timeliness of a waiver request A request for waiver of indebtedness must be made within 180 days following the date of a notice of indebtedness, for notices issued on or after April 1, 1983. 38 C.F.R. § 1.963. The 180-day period may be extended if the individual requesting waiver demonstrated to the Chairperson of the COWC that, as a result of an error by either VA or the postal authorities, or due to other circumstances beyond the debtor's control, there was a delay in such individual's receipt of the notification of indebtedness beyond the time customarily required for mailing (including forwarding). Id. If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, the Chairperson shall direct that the 180-day period be computed from the date of the requester's actual receipt of the notice of indebtedness. Id. A review of the record shows that, via letter dated April 7, 2016, the VA Muskogee RO mailed correspondence to the Veteran notifying him of an overpayment of Chapter 33 educational assistance benefits as result of the Veteran's termination of his enrollment in the 2015 Fall term. Thereafter, the record shows that, via first notice of debt dated May 11, 2016, the DMC informed the Veteran that due to changes in his entitlement to Chapter 33 educational assistance benefits, he was overpaid in the amount of $2,529.92 in monthly housing allowance, $457.69 in tuition and fees, and $229.08 in books and supplies. According to the January 2024 COWC decision on appeal, VA received from the Veteran a waiver request on October 25, 2023. In January 2024, the DMC issued a decision denying the Veteran's request for a waiver of indebtedness on the basis that VA received his request for a waiver outside the 180-day time limit set forth by regulation. In February 2024, the Veteran filed an NOD in which he challenged the DMC's determination. In the February 2024 NOD, the Veteran does not dispute the validity of the debt nor its amount and does not assert that he did not receive the debt notification letters. Additionally, the record does not show that the Veteran has advanced arguments in support of the untimeliness of his waiver request nor does he assert that there was a delay in the receipt of the notification. The Veteran has not demonstrated that as a result of an error by either VA or the postal authorities, or due to other circumstances beyond his control, there was a delay in the receipt of the notification of indebtedness beyond the time customarily required for mailing (including forwarding). 38 C.F.R. § 1.963(b)(2). The Board is sympathetic to the Veteran's situation and is grateful for his honorable service in the Army. However, his waiver request, received on October 25, 2023, was not timely filed as it was received outside the 180-day window from the DMC's first notice of debt on May 11, 2016. Here, there is no dispute that the April 2016 notification of overpayment from the RO, and the May 2016 first notice of debt from the DMC were mailed to the Veteran at his then-current address of record. Moreover, the Veteran has not argued nor alleged non-receipt of the DMC's notices. Additionally, the Board notes that the correspondence herein discussed was never returned as undeliverable. As such, there is no basis upon which the Board can conclude that the Veteran did not timely receive the May 11, 2016 first notices of debt such that the 180-day window in which to file a request for waiver may be extended in this case. Accordingly, as the Veteran failed to comply with VA's claims processing rules and has not adduced evidence that supports a finding that there was a delay in the receipt of the notice of indebtedness, the appeal as to whether his request for a waiver was timely filed must be denied. STEVEN V. ADLER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, Associate 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.