Citation Nr: 0001437 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 98-08 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Whether a claim seeking waiver of overpayment of improved disability pension benefits in the amount of $9,160 was timely filed. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from October 1952 to September 1954. This case comes before the Board of Veterans' Appeals (the Board) on appeal from July 1997 decision of the Committee on Waivers and Compromises (the Committee) of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. An overpayment of improved disability pension benefits in the amount of $9,160 was created in January 1996. 2. VA's Debt Management Center sent a letter to the appellant on February 9, 1996, informing him of the overpayment in question and his rights with respect to requesting a waiver of the resulting debt. 3. The appellant filed a request for waiver of the overpayment in June 1997, in excess of 180 days after notice of his indebtedness was sent to his last known address of record. CONCLUSION OF LAW The appellant did not timely apply for a waiver of recovery of an overpayment of improved disability pension benefits in the amount of $9,160. 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 A request for waiver of an indebtedness other than for loan guaranty 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 postal authorities, or due to other circumstances beyond the debtor's 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 U.S.C.A. § 5302(a) (West 1991); 38 C.F.R. § 1.963(b)(2) (1999). An overpayment of improved disability pension benefits in the amount of $9,160 was created in January 1996; of record is an award action letter dated January 26, 1996, which indicated that an overpayment might result based on the appellant's reported income between February 1992 and January 1996. The record on appeal reflects that VA's Debt Management Center (DMC) sent a letter to the appellant on February 9, 1996, which informed him of the overpayment in question and his rights with respect to requesting a waiver of the resulting debt. Although a copy of the actual notice letter is not of record, as the appellant does not contend that a mistake was made by either VA or postal authorities in the mailing of this notice letter to his last known address of record at the time the letter was sent, it is presumed that he received the standard first debt notice/waiver rights letter via the authorized VA Form 20-8900. See Mindenhall v. Brown, 7 Vet. App. 271 (1994) (presumption of regularity of administrative process in the absence of clear evidence to the contrary). This finding is bolstered by the DMC's VA Form 4-661 dated July 8, 1997, which indicated that the first debt notice letter was sent on February 9, 1996. This finding is further bolstered by the appellant's express acknowledgment that he received the notice of debt letter of February 9, 1996. See VA Form 9, dated April 18, 1998 ("I received the first letter of debt on February 9, 1996."). Thereafter, the appellant filed a request for waiver of the overpayment in June 1997 which was denied by decision of the Committee in July 1997 on the basis that his request was not timely filed pursuant to 38 C.F.R. § 1.963(b)(2). This request was clearly made in excess of 180 days after notice to the appellant of the existence of his indebtedness. Hence, he failed to file a timely request for waiver as authorized by law and applicable VA regulations. The appellant has not contended there were any circumstances beyond his control which caused a delay in his receipt of the notification of the indebtedness. Rather, on appeal, he alleges that shortly after receiving the January and February 1996 award action/debt notice-waiver rights letters he went to the RO and spoke to a VA employee, who he identified as a veterans benefits counselor named Mr. Lopez, at which time he was apparently led to believe that the matter would be taken care of in due course because he was entitled to pension benefits. Thereafter, it appears that the appellant wrote a veterans service representative a number of letters in July and August 1996 concerning the indebtedness. The August 1996 letter included his statement that he disputed the debt and that was "why I requested a waiver." Notwithstanding, the DMC certified that this letter was not received at their facility in St. Paul, Minnesota, until July 1997. Further, there is no evidence that the letter or any other correspondence which could be construed as a request for waiver was received by the RO until his formal request for waiver was received in June 1997. The appellant's submissions of financial status and income verification reports in March and October 1996 and his March 1997 request for a review of his records also reflect no intent to request a waiver of the debt as well. Moreover, regarding the appellant's conversations at the RO with the aforementioned Mr. Lopez, the U. S. Court of Appeals for Veterans Claims (the Court) has held that "erroneous advice given by a government employee cannot be used to estop the government from denying benefits," McTighe v. Brown, 7 Vet. App. 29, 30 (1994), and thus, the appellant's claim as to what this individual allegedly told him concerning the overpayment in question cannot provide a basis to find his wavier claim timely filed. Hence, because there is no evidence that the notification to the appellant of this indebtedness was not sent to his last known mailing address of record or received at such address beyond the time customarily required for mailing a response, the Board concludes that his claim requesting waiver of recovery of the overpayment at issue was not timely filed. The Court has held that, in the context of a claim for burial benefits, timeliness of a claim is a threshold matter. See Thompson v. Brown, 6 Vet. App. 436 (1994) (if the claim is untimely, VA has no jurisdiction even to consider whether it is well grounded). Moreover, in Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court noted that where the law and not the evidence is dispositive, as is the case here, a claim should be denied or an appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. The Board is sympathetic to the appellant's situation, however, in the absence of any evidence showing that the February 1996 notice letter was not properly mailed to him, or that there were any "other circumstances" beyond his control that caused a delay in receipt of the notification of indebtedness, no relevant exceptions to the controlling legal criteria have been provided or are applicable in this case and therefore, the Board has no authority to disregard the Congressionally mandated limitations pertaining to timeliness standards for waiver requests. Accordingly, as the appellant's request for a waiver of recovery of an overpayment of improved disability pension benefits in the amount of $9,160 was not timely filed, his claim must be denied. ORDER The appellant's request for waiver of overpayment of improved disability pension benefits in the amount of $9,160 was not timely filed and therefore, the benefits sought on appeal are denied. A. BRYANT Member, Board of Veterans' Appeals