BVA9501254 DOCKET NO. 93-07 748 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Whether the veteran timely applied for a waiver of recovery of an overpayment of pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Alibrando, Associate Counsel INTRODUCTION The veteran served on active duty from December 1941 to November 1945. This appeal arises from an August 1991 decision of the Regional Office's Committee on Waivers and Compromises (RO), which denied the veteran's request for waiver of recovery of an overpayment on the basis that his request for a waiver of recovery of the overpayment was not timely filed. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in effect, that his request for waiver of recovery of an overpayment should be considered to be timely filed. He asserts that he was confused about the requirements for filing a request for a waiver, citing both his advanced age and reliance on incorrect information regarding the time limits for filing such a request. He also contends that he does not have the financial mean to repay the overpayment. 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 appellant did not timely apply for a waiver of recovery of an overpayment of pension benefits, therefore his claim is denied. FINDINGS OF FACT 1. In a letter to the veteran dated in February 1990, and mailed to his address of record, he was informed by the RO that an overpayment of pension benefits was made to him, creating a debt owed by him to the United States Government and that a request for waiver of the overpayment could be made at any time within 180 days. 2. In a letter to the RO signed and received in May 1991, the veteran requested a waiver of the recovery of the overpayment of pension benefits. CONCLUSION OF LAW The veteran did not timely apply for a waiver of recovery of an overpayment of pension benefits. 38 U.S.C.A. § § 5107, 5302(a) (West 1991); 38 C.F.R. § 1.963(b)(2) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 Department of Veterans Affairs or the 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); 38 C.F.R. § 1.963(b)(2). The record shows that the RO calculated that an overpayment of pension benefits was made to the veteran. By letter dated in January 1990, the RO informed the veteran that his pension benefits had been terminated effective in September 1989 due to excessive income. The letter indicated that the adjustment had resulted in an overpayment of benefits and that he would be notified of the exact amount. In a letter to the veteran dated in February 1990, he was informed of the overpayment and his rights with respect to requesting a waiver of the resulting debt. In a statement signed by the veteran in May 1991 and received at the RO that same month, the veteran requested a waiver of the overpayment. This request was clearly made in excess of 180 days after notice to the veteran of the existence of his indebtedness. Moreover, the veteran has not contended there was any error by either the VA or postal authorities or any circumstances beyond the veteran's control causing any delay in his receipt of the notification of his indebtedness. The veteran has offered an explanation as to why his request for a waiver of recovery of the overpayment was filed late; however, that is not dispositive. Because there is no evidence or even specific allegation that the notification to the veteran of this indebtedness was not received by him or received beyond the time customarily required for mailing a response, the Board concludes that the veteran's application requesting a waiver of recovery of the overpayment at issue was not timely filed. The United States Court of Veteran's Appeals (Court) has held, that in the context of a claim for burial benefits, timeliness of a claim is a threshold matter. The Court concluded that if the claim is untimely, the VA has no jurisdiction even to consider whether it is well grounded. Thompson v. Brown, 6 Vet. App. 436, 438 (1994). In Sabonis v. Brown, 6 Vet.App. 426 (1994), the Court noted that in cases 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. Accordingly, as the veteran's request for a waiver of recovery of an overpayment of pension benefits was not timely filed, his claim must be denied. ORDER As the appellant did not timely apply for a waiver of recovery of an overpayment of pension benefits, his appeal is denied. C.W. SYMANSKI 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.