Citation Nr: 0004148	
Decision Date: 02/16/00    Archive Date: 02/23/00

DOCKET NO.  	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in 
Houston, Texas


THE ISSUE

Whether a request for waiver of recovery of overpayment of 
death pension benefits was timely filed.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States

INTRODUCTION

The appellant is the widow of the veteran who served on 
active duty from August 1942 to November 1943.  This matter 
comes to the Board of Veterans' Appeals (Board) on appeal 
from a decision by the Committee on Waivers and Compromises 
(RO) at the VA Debt Management Center at Fort Snelling, 
Minnesota, which denied the appellant's request for a waiver 
of an overpayment based on a finding that the appellant's 
request for a waiver was not made within 180 days of being 
notified of the indebtedness and of her right to make such a 
request.  


FINDINGS OF FACT

1.  In a letter to the appellant dated October 2, 1992, and 
mailed to her address of record, she was informed by the RO 
that an overpayment of death pension benefits was made to 
her, creating a debt owed by her to the United States 
Government.  She was informed that a request for waiver of 
the overpayment could be made at any time within 180 days.

2.  The appellant's request for waiver was dated May 20, 
1996, a time more than 180 days after notification.  


CONCLUSION OF LAW

A timely request for waiver of recovery of an overpayment of 
death pension benefits was not filed by the appellant.  
38 U.S.C.A. § 5302(a) (1991); 38 C.F.R. §§ 1.963, 3.1 (q) 
(1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under applicable criteria, a request for waiver of an 
indebtedness shall only be considered if made within 180 days 
following the date of a notice of indebtedness to the debtor.  
The 180-day period may be extended if the individual 
requesting waiver demonstrates that, as a result of an error 
by either VA or the postal authorities, or due to other 
circumstances beyond the veteran's control, there was a delay 
in such individual's receipt of the notification of 
indebtedness beyond the time customarily required for 
mailing.  If the requester does substantiate that there was 
such a delay in the receipt of the notice of indebtedness, 
the 180-day period shall be computed from the date of the 
requester's actual receipt of the notice of indebtedness.  
38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b)(2).

The record shows that following termination of the 
appellant's death pension benefits in 1992, she was informed, 
by official letter dated October 2, 1992, of the amount of 
the overpayment and of her right to request waiver of the 
overpayment within 180 days.  The October 2, 1992, letter to 
the appellant was addressed to her address then of record and 
this is the same address that she has continued to use 
thereafter.

A request for waiver of an indebtedness will only be 
considered if it is made 180 days following the date of 
notification of indebtedness that is issued on or after April 
1, 1983.  38 U.S.C.A. § 5302(a); 38 C.F.R. § 1.963(b).  Where 
VA mails a notice there is a presumption in the regularity of 
the administrative process.  Mindenhall v. Brown, 7 Vet. App. 
271, 274 (1994).

In a statement dated in May 1996, the appellant requested a 
waiver of the overpayment due to financial hardship.  The 
request was clearly made in excess of 180 days after notice 
to the appellant of the existence of the indebtedness.

The appellant has contended that she did not receive the 
notification letter in 1992 and she asserts that when the 
overpayment notification was sent, she was in the hospital.  
However, the Board notes that the law and regulations are 
dispositive and 38 C.F.R. § 3.1(q) provides that notice means 
"written notice sent to a claimant or payee at his or her 
latest address of record."  A review of the record shows 
notice was sent to the appellant's last address and that 
there was no showing that the notice was returned as 
undeliverable or that she did not receive it.  The local 
postmaster has indicated it is possible she did not receive 
the letter, but again there is no indication the letter was 
returned as undeliverable.

Accordingly, the Board concludes that her application 
requesting waiver of recovery of the overpayment at issue was 
not timely filed.  The United States Court of Appeals for 
Veterans Claims (Court) has held that timeliness of a claim 
is a threshold matter.  If the claim is untimely, the VA has 
no jurisdiction even to consider whether it is well grounded.  
Thompson v. Brown, 6 Vet. App. 436, 438 (1994).  In Sabonis 
v. Brown, 6 Vet. App. 426 (1994), the Court noted that in 
cases where the law and not the evidence is dispositive, as 
is the case here, a claim shall be denied or an appeal to the 
Board terminated because of the absence of legal merit or the 
lack of entitlement under the law.  Accordingly, as a request 
for waiver of recovery of an overpayment of death pension 
benefits was not timely filed, the claim must be denied.  


ORDER

The appellant's request for waiver of recovery of an 
overpayment of death pension benefits was not timely filed 
and the appeal is denied.



		
	Robert E. O'Brien
	Acting Member, Board of Veterans' Appeals