Citation Nr: 0006629	
Decision Date: 03/13/00    Archive Date: 03/17/00

DOCKET NO.  98-17 635A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Whether a request for waiver of recovery of an overpayment of 
Department of Veterans Affairs death pension benefits, in the 
amount of $1,635, was timely filed. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. D. Parker, Counsel



INTRODUCTION

The veteran served on active duty from July 1946 to May 1947.  
He died on March [redacted], 1989.  The appellant is the 
veteran's surviving spouse, who began receiving VA death 
pension benefits effective from September 1990. 

This appeal arose from a July 1998 determination by the 
Committee on Waivers and Compromises (Committee) of the 
Regional Office (RO) in St. Louis, Missouri, which denied the 
appellant's request for waiver of recovery of an overpayment 
of death pension benefits on the basis that the appellant did 
not submit a timely request for waiver of the overpayments.  



FINDINGS OF FACT

1.  The appellant was notified in August 1997 of overpayment 
of death pension benefits. 

2.  A request for waiver of recovery of the indebtedness was 
received in June 1998, more than 180 days after the notice of 
the indebtedness.  



CONCLUSION OF LAW

The request for waiver of overpayment of death pension 
benefits in the amount of $1,635 was not timely filed.  38 
U.S.C.A. § 5302(a) (West 1991); 38 C.F.R. § 1.963(b)(2) 
(1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the applicable criteria, a request for waiver of an 
indebtedness shall only be considered: (1) if it is made 
within 2 years following the date of a notice of indebtedness 
issued on or before March 31, 1983, by VA to the debtor, or 
(2) except as otherwise provided herein, if it is made within 
180 days following the date of a notice of indebtedness 
issued on or after April 1, 1983, by VA to the debtor.  The 
180 day period may be extended if the individual requesting a 
waiver demonstrates to the Chairperson of the Committee on 
Waivers and Compromises 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).  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.  See 38 C.F.R. § 
1.963(b); see also 38 U.S.C.A. § 5302(a).

The appellant was notified by the RO in August 1997 of 
overpayment of death pension benefits, and of her appellate 
rights.  A request for waiver of recovery of the indebtedness 
was not received from the appellant until June 1998, more 
than 180 days after notice of the indebtedness.  

The appellant's only contention is that she mailed a request 
for waiver for overpayment "in error" to the St. Louis RO, 
which should nevertheless qualify as a timely request for 
waiver of overpayment.  The Notice of Rights form that was 
sent to her in August 1997, however, clearly advised her of 
the address to which she was to request waiver.  Moreover, in 
this case, even the alleged October 1997 waiver request is 
not a part of the claims file. 

The regulatory provision which provides for an extension of 
the 180 period, 38 C.F.R. § 1.963(b)(2), does so only where 
there is alleged delay in receipt of the notification of 
indebtedness.  Notwithstanding the appellant's 
representative's notation in the January 2000 presentation 
that the letter of notice of overpayment "was not of record 
prior to the [Board's June 1999] remand instructions," the 
appellant does not contend that she did not receive the 
August 1997 Notice of Rights.  She has presented no evidence 
to demonstrate error by either VA or postal authorities, or 
that, due to circumstances beyond her control, there was 
delay in receipt of such notice.  See 38 U.S.C.A. § 5302; 
38 C.F.R. § 1.963(b).  As the appellant has indicated she in 
fact received the August 1997 notification, and even tried to 
respond, the provisions of 38 C.F.R. § 1.963(b)(2) would not 
extend the 180-day time period in her case.  The Board is 
bound by the controlling statute in this case, 38 U.S.C.A. 
§ 5302, governing timeliness of request for waiver of 
overpayment.  For these reasons, the Board finds that the 
appellant's claim is without legal merit, and must be denied.  
See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


ORDER

A request for waiver of recovery of an overpayment of death 
pension benefits in the amount of $1,635 was not timely 
filed, and the appeal is denied.



		
	RAYMOND F. FERNER
	Acting Member, Board of Veterans' Appeals