BVA9505477 
DOCKET NO.  92-15 010     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Committee on Waivers and
Compromises of the Regional Office in St. Louis, Missouri

THE ISSUE

Whether the veterans request for a waiver of recovery of an
overpayment of improved disability pension benefits in the
calculated amount of $3,382 was timely filed.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

R. D. Turano, Counsel

INTRODUCTION

The veteran served on active duty from November 1950 to November
1952.

This matter came before the Board of Veterans Appeals (Board)
from an April 1992 decision by the Committee on Waivers and
Compromises (Committee) of the Regional Office (RO).  At this
time, in part, it was determined that the veteran's request for a
waiver of recovery of an overpayment of Department of Veterans
Affairs (VA) pension benefits in the amount of $3,382 was not
timely filed.  It was also determined at this time that a waiver
of recovery of a second overpayment in the amount of $3,342 was
not in order.  A notice of disagreement was received in June
1992.  The statement of the case was issued in July 1992.  A
substantive appeal was received in July 1992.  The case was
remanded by the Board in June 1993 and in April 1994.  Following
this action, in a decision dated in July 1994, the Committee
determined that a waiver of recovery of the second overpayment
was in order and as such, this appeal is now limited to that
issue specified on the title page of this decision.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran and his representative contend, in substance, that
the veteran's request for a waiver of recovery of an overpayment
of improved pension benefits in the amount of $3,382 should be
deemed to have been timely.  It is asserted that when notified of
this overpayment, the veteran was not provided sufficient notice
of the procedural rights regarding a request for a waiver.

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 veteran's request for a waiver of recovery of an
overpayment in the amount of $3,382 was not timely filed.

FINDINGS OF FACT

1.  In correspondence dated on February 22, 1991, the VA notified
the veteran of the amount of the overpayment in question.

2.  At this time he was provided a computer generated letter
which specified the amount of the indebtedness, his right to
dispute the existence of the debt and the procedures necessary
for a request for a waiver of recovery of the indebtedness.  He
was informed that his request for waiver of the overpayment could
be made at any time within 180 days.

3.  The request for waiver of recovery of the overpayment was
received from the veteran in January 1992.

CONCLUSION OF LAW

The veteran failed to timely file his request for a waiver of
recovery of an overpayment of improved VA pension in the
calculated amount of $3,382.  38 U.S.C.A. §§ 5107, 5302(a) (West
1991); 38 C.F.R. § 1.963(b)(2) (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board finds, initially, that the veteran's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991);
that is, we find that the claim presented is plausible.  The
Board is also satisfied that all relevant facts have been
properly developed and that no further assistance to the veteran
is required to comply to the duty to assist mandated by 38
U.S.C.A. § 5107(a) (West 1991).  The Board has remanded this
matter on two occasions, the first of which sought clarifying
documentation deemed pertinent to this particular claim on
appeal.

A review of this matter indicates that the veteran was found to
be permanently and totally disabled for pension purposes from
November 15, 1988.  The veteran was notified by a computer
generated letter dated on February 22, 1991, that an overpayment
was charged to his account in regard to his receipt of VA pension
benefits.  The veteran submitted a request for a waiver of
recovery of this overpayment which was received on January 30,
1992.  It has been argued that the veteran's request for a waiver
of recovery of an overpayment of improved pension benefits in the
amount of $3,382 should be deemed to have been timely.  Moreover,
it is asserted that when notified of this overpayment, the
veteran was not provided sufficient notice of the procedural
rights regarding a request for a waiver.

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 the
VA or the postal, authorities, or due to other circumstances
beyond the debtors control, that 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 C.F.R. § 1.963(b)(2) (1994).

As noted, the veteran was informed via a computer-generated
letter dated February 22, 1991, of his overpayment in the amount
of $3,382 and that he had the right to dispute the existence of
the debt and the right to request waiver of the indebtedness.
Although a copy of this specific notice is not of record,
clarifying information was received from the VA Debt Management
Center in August 1993, confirming that a Notice of Overpayment
and Withholding of Benefits letter was sent to the veteran on
February 22, 1991.  Further, a blank copy of this letter was
associated with the record which adequately sets forth the
veteran's rights in situations in which an overpayment was
created.  Specifically, the letter details that the veteran has
the right to request a waiver of recovery of the overpayment but
that such a request must be submitted within 180 days.
Accordingly, the Board finds that, in fact, this letter was
issued to the veteran on the date specified and provided him with
the appropriate notice of his procedural rights with respect to
the request for a waiver.

Accordingly, under the circumstances of this case, it is apparent
that the veteran did not submit a request for a waiver of
recovery of the overpayment in question within 180 days from the
February 1991 letter and as such, it may not be deemed to have
been timely filed.  38 U.S.C.A. § 5302(a) (West 1991); 38 C.F.R.
§ 1.963(b)(2) (1994).  Further, the evidence fails to demonstrate
that any error was made by either the VA or the Postal service
which could have effected the veteran's ability to submit a
request for waiver in a timely manner.

In reaching these conclusions the Board finds that the evidence
of record is not so evenly balanced that there is doubt as to any
material issue. 38 U.S.C.A. § 5107 (West 1991).

ORDER

The appeal is denied.

          E. M. KRENZER
          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.

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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 your appeal by the Board of
Veterans' Appeals.