BVA9507767 DOCKET NO. 93-11 182 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to waiver of recovery of an overpayment of dependency and indemnity compensation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from January 1942 to September 1953. He died in August 1970. This is an appeal from a June 1992 decision by the Department of Veterans Affairs (VA) Regional Office, San Diego, denying entitlement to waiver of recovery of an overpayment of dependency and indemnity compensation benefits. The overpayment is in the amount of $109,301. CONTENTIONS OF APPELLANT ON APPEAL It is contended on behalf of the appellant that any debt owed by the appellant to the VA has been discharged in her Chapter 7 bankruptcy proceeding which has been finalized. The VA was listed as a creditor in the proceedings and failed to file any objection. Accordingly, it is maintained that the appeal should be dismissed as moot because the debt has been discharged in bankruptcy and is no longer legally enforceable. 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 appeal for waiver of recovery for the overpayment of dependency and indemnity compensation should be dismissed. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. In October 1970, the appellant was awarded dependency and indemnity compensation benefits as surviving spouse of the veteran who died in August 1970. 3. In December 1991, the appellant notified the VA that she had remarried in August 1973. 4. In 1992, the appellant's award of dependency and indemnity compensation was terminated effective in January 1974 due to her remarriage. The overpayment in question resulted from this action. 5. In June 1992, the Regional Office Committee on Waivers and Compromises denied the appellant's request for waiver of recovery of the overpayment. The appellant appealed from that decision. 6. A January 1995 order by a United States Bankruptcy Court reflects that the appellant was released from all dischargeable debts. The VA was listed as a creditor in connection with the bankruptcy proceedings and did not file a complaint objecting to dischargeabilty of the overpayment. There was no misrepresentation or fraud on the part of the appellant in connection with the overpayment. CONCLUSION OF LAW Since the overpayment of dependency and indemnity compensation was discharged in the January 1995 bankruptcy order, there is no question for the Board to consider in regard to the appellant's appeal. 38 U.S.C.A. §§ 5302, 7104 (West 1991); 38 C.F.R. § 1.965 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The record reflects that the veteran died in August 1970. In October of that year, the appellant was awarded dependency and indemnity compensation benefits as his surviving spouse. The record further discloses that, in December 1991, the appellant notified the regional office that she had remarried in August 1973. In 1992, the appellant's award of dependency and indemnity compensation was terminated, effective in January 1974 due to her remarriage. This action resulted in the overpayment in question. In June 1992, the Regional Office Committee on Waivers and Compromises denied the appellant's request for waiver of recovery of the overpayment. It was held that there was no evidence of fraud, misrepresentation or bad faith on the part of the appellant in creation of the overpayment. However, it was indicated that there was fault on the part of the appellant in creation of the indebtedness and that failure to repay the overpayment would result in unjust enrichment on the part of the appellant. Thus, it was held that recovery of the indebtedness would not be against equity and good conscience and the appellant's request for waiver of recovery of the overpayment was denied. She appealed from that decision. In December 1994, the Regional Office District Counsel noted that the appellant had filed for bankruptcy in October 1994. It was noted that pursuant to the bankruptcy statute the debt was dischargeable and that, in order to object to discharge, the VA had to prove that it was obtained by misrepresentation or fraud. The District Counsel asked the regional office director to ascertain whether there was any factual basis for filing a complaint objecting to dischargeability of the debt in the Unites States Bankruptcy Court. Later in December 1994, the regional office adjudication officer advised the District Counsel that the evidence of record did not show that the appellant obtained VA benefits by misrepresentation or fraud. In February 1995, an attorney who represented the appellant in connection with her bankruptcy proceedings submitted a copy of a January 1995 order by a United States Bankruptcy Court reflecting that, in October 1994, the appellant had filed a petition for bankruptcy. The court ordered that the appellant be released from all dischargeable debts. The appellant's attorney indicated in January and March 1995 letters that the VA had been listed as a creditor in connection with the appellant's Chapter 7 bankruptcy proceedings and it failed to file any objection to the proceedings. He noted that the appellant had received her bankruptcy discharge. Since the evidence establishes that the VA was included as a creditor in connection with the appellant's bankruptcy proceedings and did not file any objection to the proceedings and the appellant's indebtedness to the VA was discharged in the January 1995 bankruptcy action, the question of her entitlement to waiver of recovery of the overpayment of dependency and indemnity compensation has been rendered moot and there is no further matter for the Board to review with regard to that question. Accordingly, it is necessary that the appeal be dismissed. 38 U.S.C.A. § 7104. ORDER The appeal for entitlement to waiver of recovery of the overpayment of dependency and indemnity compensation is dismissed. WAYNE M. BRAEUER 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.