Citation Nr: 0002679 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-10 033A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to waiver of recovery of an overpayment of an apportionment of VA disability compensation benefits in the amount of $825, to include the question of whether the waiver request was timely filed. ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran served on active duty from May 1987 to July 1992. The veteran also had 4 years, 7 months, and 19 days of additional prior active service. The appellant is the veteran's ex-wife. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1996 decision of the Committee on Waivers and Compromises at the Debt Management Center in St. Paul, Minnesota, which denied the appellant's request for waiver of recovery of an overpayment of an apportionment of VA disability compensation benefits in the amount of $825 on the basis that the request was not filed in a timely manner. Thereafter, the case was transferred to the Providence, Rhode Island RO, which is presently handling the current appeal. This case was before the Board in August 1999 when it was remanded for additional development. FINDINGS OF FACT 1. The first letter notifying the appellant of an overpayment of an apportionment of VA disability compensation benefits in the amount of $825 was mailed to the appellant on October 14, 1995; included with this notice was information advising the appellant of her rights to request waiver of the debt within 180 days. 2. A statement from the appellant-accepted by the RO as a request for waiver of the overpayment of an apportionment of VA disability compensation benefits-was dated June 3, 1996 and noted to be received by the RO June 10, 1996, more than seven months following issuance of the notice of overpayment. CONCLUSION OF LAW The appellant's claim for waiver of recovery of an overpayment of an apportionment of VA disability compensation benefits in the amount of $825 was not timely filed. 38 U.S.C.A. §§ 5107, 5302(a), 7105 (West 1991); 38 C.F.R. § 1.963(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The evidence of record shows that by letter dated in July 1995, the appellant was awarded an apportionment of the veteran's VA disability compensation benefits, effective in March 1995. By letter dated in October 1995 and mailed to the appellant at a [redacted] address in [redacted], Massachusetts, the RO notified the appellant that her apportionment award was terminated effective May 1, 1995, on the basis that her marriage to the veteran was terminated by final divorce on April 7, 1995. This retroactive termination of benefits created the overpayment in question. On October 14, 1995, the appellant was mailed a notice of overpayment of an apportionment of VA disability compensation benefits in the amount of $825. Included with this notice was information regarding the appellant's right to request a waiver of the debt within 180 days. Although a copy of this demand letter is not of record, VA's Debt Management Center certified in November 1999 that the demand letter and the notice of appellate rights were mailed on October 14, 1995 and were not returned as undeliverable due to a bad address. A sample copy of the demand letter was attached to the certification along with a copy of the CAROLS Master File. The Master File lists the veteran's address as on [redacted] [redacted] in [redacted]. The threshold question to be answered in this case, is whether the appellant has submitted a timely request for waiver of recovery of an overpayment of an apportionment of VA disability compensation benefits in the amount of $825 after notification of the indebtedness. Under the applicable criteria, a request for waiver of an indebtedness under this section 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 the Department of Veterans Affairs (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 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 C.F.R. § 1.963(b). See also 38 U.S.C.A. § 5302(a). In the case at hand, the appellant's request for waiver of the overpayment of an apportionment of VA disability compensation benefits, dated June 3, 1996, was noted to be received by the RO on June 10, 1996. (The RO noted that this statement was treated as a request for waiver of the overpayment even though the statement contained only income and expense figures; the appellant did not expressly state her request for a waiver of the overpayment.) The appellant listed her return address as a [redacted] address in [redacted]. By decision in June 1996, the Committee on Waivers and Compromises denied the appellant's request for waiver of recovery of the $825 overpayment because her request was not received within the requisite 180 days following the notification of indebtedness in October 1995. In October 1996, the appellant submitted a notice of disagreement with the decision to deny her waiver request. In November 1996, the RO issued the appellant a statement of the case, which explained that her waiver request was denied on the basis that it was not received within the applicable time limit. The appellant submitted a substantive appeal in April 1997. Based on the above factual grounds, a timely request for waiver of recovery of the overpayment of $825 would have been received by the VA within 180 days from October 14, 1995. The uncontroverted evidence demonstrates that the appellant's request for waiver was received in June 1996, nearly two months too late for consideration of the request. It has not been contended or shown that the appellant ever requested an extension of time to file a waiver request. In addition, the appellant has not substantiated that the letter notifying her of the indebtedness and the right to request a waiver was not received by her within a few days after it was posted. Moreover, there is nothing in the record to establish that the demand letter notifying her of her right to request a waiver was returned as undeliverable. The Board notes that by letter dated May 14, 1996 and mailed to the appellant at the [redacted] address in [redacted], the RO requested income and expense information from the appellant. The appellant responded to this request by letter dated in June 1996; at that time the appellant also notified the RO of her new address on [redacted]. The appellant's response to the RO's May 1996 request for information would suggest that she was still receiving mail addressed to her [redacted] address seven months after the first demand letter was sent to the [redacted] address by the Debt Management Center. Under such circumstances there is no reason to believe that the demand letter was not forwarded to the veteran's latest address even if it were to be assumed that she had in fact changed addresses. ORDER As a timely claim for waiver of recovery of an overpayment of an apportionment of VA disability compensation benefits in the amount of $825 was not submitted, the appeal is denied. C. W. SYMANSKI Member, Board of Veterans' Appeals