BVA9501893 DOCKET NO. 93-07 959 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Whether a request for waiver of recovery of an overpayment of dependency and indemnity compensation benefits was timely submitted. ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from February 1971 until his death in May 1972. This is an appeal from a September 1992 determination by the Department of Veterans Affairs (VA) Regional Office, Albuquerque, New Mexico, that a request for waiver of recovery of an overpayment of dependency and indemnity compensation benefits had not been timely submitted. The appellant is the son of the deceased veteran. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his request for waiver of recovery of the overpayment in question should be considered as having been timely submitted since he never received any notification regarding the overpayment until his tax refund was attached. He was unaware that a time limit existed for requesting waiver of recovery of the indebtedness. His mother and stepfather had moved to Indiana and he did not move with them. He never received anything indicating that filing a request for waiver of recovery of an overpayment was in order. The appellant indicates that he could not have been expected to file a request for waiver of recovery of an overpayment when he did not even know it existed. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant's request for waiver of recovery of the overpayment of dependency and indemnity compensation was timely submitted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal regarding the timeliness question has been obtained by the regional office. 2. In August 1988, the veteran's widow, Olga, who had remarried, was awarded dependency and indemnity compensation as custodian of the appellant based on his school attendance after reaching age 18. 3. In September 1989, the award for the appellant was terminated, effective in September 1988 since he had failed to complete and return a form verifying his school attendance. The overpayment in question resulted from this action. 4. In April 1992 the Internal Revenue Service notified the appellant that he would not receive his tax refund of $941 because he had a past-due obligation to the VA. 5. In September 1992, the appellant disputed the existence of the debt and requested a waiver of recovery of the overpayment. 6. The evidence does not establish that the appellant was notified of the indebtedness prior to April 1992. CONCLUSION OF LAW The appellant's request for a waiver of recovery of the overpayment of dependency and indemnity compensation was timely submitted. 38 C.F.R. §§ 5107, 5302 (West 1991); 38 C.F.R. § 1.963 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the appellant's claim regarding the question of timely submission of a request for waiver of recovery of the overpayment in question to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1991. That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts regarding this claim have been properly developed. The record reflects that, in August 1988, the veteran's widow, Olga, who had remarried,, was awarded dependency and indemnity compensation as custodian of the appellant based on his school attendance after reaching age 18. The appellant was born in September 1970. The record further discloses that, in September 1989, the award for the appellant was terminated, effective in September 1988 since he had failed to complete and return a form verifying his school attendance. The overpayment in question resulted from this action. In April 1992 the Internal Revenue Service applied the appellant's pending tax refund to the overpayment and so informed him. The record indicates that, in September 1992, the appellant questioned the creation of the debt and requested a waiver of recovery of the overpayment. The request was denied on the basis that it had not been timely submitted. An application for waiver of recovery of an overpayment of any benefit will be considered only if received within 180 days following the date of notice of the indebtedness by the VA to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrates to the Chairperson of the Committee on Waivers and Compromises that, as a result of an error by either the 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). 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. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.963(b). In this particular case, as indicated previously, in September 1989, the award of dependency and indemnity compensation for the appellant was terminated effective in September 1988 since he had failed to complete and return a form verifying his school attendance. An overpayment was created as a result of this action. Although letters were sent by the regional office to the appellant at his parent's address in New Mexico, in July and September 1989 regarding the termination of the benefits, the claims file does not reflect a letter to the appellant notifying him of the amount of the indebtedness and informing him of his right to request a waiver of recovery of the overpayment. The regional office, in a May 1992 letter, indicated that the appellant was advised of the amount of the overpayment on December 7, 1989. However, the record indicates that the appellant's mother and stepfather moved from New Mexico to Indiana in October 1989 and the appellant moved to Texas in November of that year. The appellant has maintained that he was not aware of the indebtedness until April 1992. Accordingly, under the circumstances of this case, the Board concludes that the 180-day period did not begin to run until April 1992 and the appellant's request for waiver of recovery of the indebtedness was, therefore, timely submitted. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.963. In arriving at its decision in this regard, the Board has resolved all doubt in favor of the appellant. 38 U.S.C.A. § 5107. ORDER The appellant's request for waiver of recovery of an overpayment of dependency and indemnity compensation benefits was timely submitted. The appeal is granted to this extent. REMAND Since the Board has determined that the appellant's request for a waiver of recovery of the overpayment of dependency and indemnity compensation was timely submitted, the question of waiver of recovery of the indebtedness should be reviewed by the regional office on its merits. In this regard, the record reflects that, in May 1992, the appellant's stepfather completed a VA Form 21-8960 reflecting that the appellant had terminated his schooling in May 1989. However, no adjustment of the overpayment was made on the basis of this information. The record also indicates that the appellant's mother received the dependency and indemnity compensation benefits rather than the appellant thus raising a question as to whether the overpayment should be charged to her rather than the appellant. The record further indicates that, in addition to the overpayment declared against the appellant, an overpayment in the Restored Entitlement Program for Survivors (REPS) account for the appellant's mother had been created. She had requested a waiver of recovery of that overpayment and, in July 1990, her request was granted. In a statement received in January 1993, the appellant's mother indicated that, in March 1990, she had contacted the VA office in Minnesota. She had been told that the indebtedness was her responsibility and she had agreed to pay the sum of $10 per month. In July 1990, she had been informed by her representative that a waiver had been granted. She stated that it was not until April 1992 that she had learned that the indebtedness was for the appellant instead of herself. There is of record a financial status report (VA Form 4-4655) received by the VA Regional Office, St. Paul, Minnesota, in March 1990 indicating that $10 could be applied toward the appellant's overpayment. The form was reportedly signed for the appellant by his stepfather. It is apparent that the appellant and his mother have been unable to clearly distinguish the two overpayments and have not been able to deal effectively with the confusing and conflicting correspondence received as a result. The record further discloses that, in the statement of the case, it was indicated that the appellant was represented by the Paralyzed Veterans of America, Inc. Although there is a power of attorney signed by the appellant's mother naming that organization as her representative, there is no appointment of a representative by the appellant. In view of the aforementioned matters, the case is REMANDED to the regional office for the following action: 1. The appellant should be contacted, informed of the function of a representative, and asked whether he wishes to designate a representative to assist him. If so, he should be provided the appropriate form for completion and return to the regional office. 2. The VA Regional Office, St. Louis, should be contacted and asked to provide copies of all records pertaining to the REPS overpayment of the appellant's mother, Olga. The VA Finance Center, St. Paul, should also be contacted and asked to provide copies of all correspondence sent to the appellant or his mother and all records received at that office in connection with either the REPS overpayment of Olga or the dependency and indemnity compensation overpayment at issue in this case. All such records obtained should be associated with the claims file. If file copies of any correspondence were not made due to automation, a memorandum to this effect, along with a sample of any form letter the computer records indicate was sent should be added to the record. 3. The appellant's request for waiver of recovery of the overpayment should then be reviewed by the regional office. A determination should be made as to whether the overpayment was properly created, that is, whether the overpayment is in the correct amount and whether it is properly chargeable to the appellant. Clarification should be obtained from the appellant as to the month in which he terminated his school attendance. Any necessary adjustment in the amount of the overpayment should be accomplished. If an overpayment remains, the Committee on Waivers and Compromises should then develop and consider the waiver request. If any determination remains adverse to the appellant, and he expresses his disagreement, he and his representative, if one has been appointed, should be provided a statement of the case and be afforded the appropriate time in which to respond. When the above action has been completed, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the appellant until he receives further notice. The purpose of this REMAND is to obtain clarifying information and also to insure that the requirements of due process of law are satisfied. The Board intimates no opinion as to the disposition warranted regarding the matters at issue pending completion of the requested action. ROBERT D. PHILIPP Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. The remand portion of this decision is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993). NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on the issue of timely appeal by the Board of Veterans' Appeals.