BVA9505469 DOCKET NO. 93-09 607 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to waiver of recovery of an overpayment of disability compensation benefits. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from May 1945 to February 1947 and from January 1952 to August 1975. This is an appeal from a March 1992 decision by the Department of Veterans Affairs (VA) Regional Office, Atlanta, Georgia, denying entitlement to waiver of recovery of an overpayment of disability compensation benefits. The overpayment is in the amount of $2,076. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that waiver of recovery of the overpayment of disability compensation benefits should be granted by the VA since he promptly notified the Air Force and the VA of his divorce from his wife and was unaware that he was receiving any VA benefits to which he was not entitled. It is maintained that the veteran is behind on many of his bills and recovery of the overpayment would cause a financial hardship for him. 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 preponderance of the evidence is against the veteran's claim for a waiver of recovery of the overpayment in question. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. The veteran has established service connection for several disabilities, which have been rated 60 percent disabling in combination for a number of years. His award has included an additional allowance for a wife and children. 3. In December 1991, the veteran's award was adjusted to remove his spouse as a dependent, effective November 1, 1988, due to their divorce. The overpayment in question resulted from this action. 4. There was some fault on the part of the veteran in creation of the overpayment since he had some reason to believe that he was in receipt of additional disability compensation for a dependent wife to which he was not entitled. 5. Recovery of the overpayment would not seriously impair the veteran's ability to meet his necessary living expenses. CONCLUSION OF LAW Recovery of the overpayment of disability compensation would not be against equity and good conscience. 38 U.S.C.A. §§ 5107, 5302 (West 1991); 38 C.F.R. § 1.965 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the veteran's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. The record reflects that the veteran has established service connection for various disabilities, rated 60 percent disabling in combination for a number of years. His awards have included an additional allowance for a spouse and children. The record further reflects that in late 1991, the veteran's award was adjusted to remove his spouse as a dependent, effective in November 1988, due to their divorce. The overpayment in question resulted from this action. The Regional Office Committee on Waivers and Compromises has held that there was no fraud, misrepresentation or bad faith on the part of the veteran in creation of the overpayment. The Board concurs. Thus, his request for recovery of the overpayment was not barred on that basis. However, it was held that there was some fault on the part of the veteran in creation of the overpayment and that recovery of the indebtedness would not be against equity and good conscience. Thus, the veteran's request for waiver of recovery of the overpayment was denied. The standard "equity and good conscience" will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the Government's rights. The decision reached should not be unduly favorable or adverse to either side. The phrase "equity and good conscience" means arriving at a fair decision between the obligor and the Government. In making this determination, consideration is given to the following elements, which are not intended to be all-inclusive: (1) Fault of the debtor. Where actions of the debtor contribute to creation of the debt. (2) Undue hardship. Whether collection would deprive the debtor or family of basic necessities. (3) Defeat the purpose. Whether withholding of benefits or recovery would nullify the objective for which benefits were intended. (4) Unjust enrichment. Failure to make restitution would result in unfair gain to the debtor. (5) Changing position to one's detriment. Reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.965(a). In this particular case, as indicated previously, the veteran's award of disability compensation had included an additional allowance for a wife and children. In late 1991, the regional office adjusted the veteran's award of disability compensation to remove his spouse as a dependent, effective in November 1988 due to their divorce. This action was taken following a 1991 report by the veteran to the regional office of his divorce from his wife. The record discloses that at the time of a VA examination in February 1988, the veteran indicated that he had been married once from 1972 to 1979 and that he did not know the current whereabouts of his wife. Also, at a November 1988 hearing at the regional office in connection with a claim for service connection for a disability, the veteran related that he was a single parent. Thus, the record indicates that the regional office had information in 1988 regarding the veteran's divorce and did not take any action to adjust his disability compensation at that time. Thus, there is some fault on the part of the regional office in creation of the overpayment. The record further reflects, however, that the veteran was notified in late December 1988 that his award included additional benefits for his spouse and children. He was informed that he had to notify the VA immediately if there was any change in the number or status of his dependents and that failure to promptly notify the VA of a dependency change would result in the creation of an overpayment in his account. Thus, the veteran had some reason to believe at that time that the amount of his disability compensation award was incorrect since it included additional benefits for a dependent spouse, whereas in fact, he was divorced. However, he did not call the erroneous award to the attention of the regional office. Thus, there is some fault on the part of the veteran as well in creation of the overpayment. In the veteran's most recent financial status report, dated in October 1992, he listed total monthly net income of about $1,505 and total monthly expenses of some $1,907. However, the veteran did not list his VA disability compensation of $655 per month on the financial status report. Thus, when that sum is added to his other monthly net income, his total monthly net income was some $2,160 which was about $250 more than his reported monthly expenses. Accordingly, under these circumstances, it does not appear that recovery of the overpayment would seriously impair the veteran's ability to meet his necessary family living expenses. There do not appear to be any other equitable factors which would warrant favorable action in connection with his appeal. In view of the aforementioned matters, the Board concludes that recovery of the overpayment of disability compensation would not be against the principle of equity and good conscience. Waiver of recovery of the overpayment would, therefore, not be in order. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.965. The Board has carefully reviewed the entire record in this case, including the testimony presented by the veteran at the August 1992 hearing at the regional office; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Entitlement to waiver of recovery of an overpayment of disability compensation benefits is not established. The appeal is denied. JAMES R. ANTHONY 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. 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.