Citation Nr: 1008502 Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-23 046 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUE
Whether the request for waiver of recovery of overpayment of nonservice-connected disability pension benefits in the original calculated amount of $696.00, was timely.
REPRESENTATION
Appellant represented by: Wisconsin Department of Veterans Affairs
ATTORNEY FOR THE BOARD
M. Tenner, Counsel
INTRODUCTION
The Veteran served on active duty from March 1942 to May 1943. He died in September 1964. The appellant is the Veteran's son and has been afforded "helpless child" status with respect to the receipt of nonservice-connected pension benefits since 1977.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 decision rendered by the Committee on Waivers and Compromise at the Debt Management Center of the Department of Veterans Affairs (VA) in Fort Snelling, Minnesota. In that decision, the Committee determined that a request for waiver of recovery of overpayment of nonservice-connected disability pension benefits in the original calculated amount of $696.00 was untimely. The appellant filed a Notice of Disagreement with that determination. In November 2007, the Milwaukee VA Pension Center issued a Statement of the Case, summarizing the law and evidence used by VA to make the decision. In August 2009, the appellant filed a Substantive Appeal, accompanied by a request for a hearing before a Member of the Board.
A hearing before the Travel Section of the Board was scheduled in November 2009. The appellant failed to report as scheduled.
FINDINGS OF FACT
1. In October 2003, VA sent a letter to the appellant, care of his fiduciary, advising him that his nonservice-connected pension benefits were terminated effective July 1, 2002, and that an overpayment would be created.
2. In September 2007, the appellant filed a statement in which he requested to appeal the decision disallowing the waiver of the $696.00 overpayment.
CONCLUSION OF LAW
The request for waiver of recovery of overpayment of VA nonservice-connected disability pension benefits in the original calculated amount of $696.00 was not timely filed. 38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. § 1.963 (b)(2) (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Matters -VA's Duties to Notify and Assist
When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
However, the notification procedures do not apply in waiver cases. Barger v. Principi, 16 Vet. App. 132, 138 (2002) (holding that the duties specified in 38 U.S.C.A. § 5103(a) are not applicable to requests for a waiver of overpayment). Chapter 53 of Title 38, United States Code (which governs waiver requests) contains its own notice provisions. As discussed herein, those notice provisions were satisfied.
II. Background and Analysis
The appellant is one of two children of the deceased Veteran. By virtue of a November 1977 decision, VA declared him incompetent to manage his VA benefits and permanently incapable of self support.
A January 2002 Field Examination report is of record. It notes that the appellant was verbal, able to hold a conversation, and managed all his funds independently. He appeared to be paying his bills and very good with numbers. He lived with his half-brother, I.D, the guardian of his VA benefits, in a two bedroom apartment. The field examiner recommended that the appellant be rated "competent."
A VA examination was scheduled in March 2002. The appellant failed to report.
In the absence of further medical evidence to evaluate the case, in April 2002, the RO continued the finding that the appellant was incompetent to manage his VA benefits.
In February 2003, the Fiduciary Unit of the VA Regional Office in Milwaukee received a copy of the appellant's Certificate of Marriage, dated July 17, 2002.
In March 2003, the Milwaukee VA Pension Center sent the appellant a notice, care of his fiduciary, advising him that because of his marriage, pension benefits would be terminated effective July 1, 2002. He was advised that the action would result in an overpayment. He was afforded a period of 60 days to submit evidence or argument as to why the proposed action should not be implemented.
There is no indication that the letter was sent to an improper address or that it was returned as undeliverable by the U. S. Postal Service.
In an October 2003 letter, the Milwaukee Pension Center sent the appellant a notice, care of his fiduciary, advising him that his pension benefits were terminated effective July 1, 2002, and that an overpayment would be created. He was advised of his right to appeal the decision, and advised that he had "one year from the date of this letter to appeal the decision. The enclosed VA Form 4107, "Notice of Procedural and Appellate Rights," explains your right to appeal. The letter was sent to the appellant's address of record, and was not returned by the Post Office as undeliverable.
In March 2007, the Milwaukee Pension Center received notice from the appellant that he had recently divorced and was seeking reinstatement of his pension benefits.
In September 2007, he filed a statement in which he requested to appeal the decision disallowing the waiver of the $696.00 overpayment.
In a statement received in May 2009, the appellant stated that he forgot to appeal the decision creating an overpayment of $696.00. He reported that he could not read or write very well and often did not understand many things that were sent to him.
A request for waiver of 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. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. § 1.963(b)(2) (2009).
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 receipt of the notification of indebtedness beyond the time customarily required for mailing. 38 C.F.R. § 1.963(b)(2). If the delay in the receipt of the notice of indebtedness is substantiated, the 180-day period is computed from the date of the requester's actual receipt of the notice of indebtedness. Id.
In substance, the appellant argues that he was precluded from filing a timely request for waiver of recovery of an overpayment of VA pension benefits because his mental disability caused either forgetfulness or an inability to understand the appeals notice as provided by VA. Having carefully considered the claim in light of the record and the applicable law, the Board finds, however, that the preponderance of the evidence is against the claim.
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Citation Nr: 1008502 Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-23 046 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUE
Whether the request for waiver of recovery of overpayment of nonservice-connected disability pension benefits in the original calculated amount of $696.00, was timely.
REPRESENTATION
Appellant represented by: Wisconsin Department of Veterans Affairs
ATTORNEY FOR THE BOARD
M. Tenner, Counsel
INTRODUCTION
The Veteran served on active duty from March 1942 to May 1943. He died in September 1964. The appellant is the Veteran's son and has been afforded "helpless child" status with respect to the receipt of nonservice-connected pension benefits since 1977.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 decision rendered by the Committee on Waivers and Compromise at the Debt Management Center of the Department of Veterans Affairs (VA) in Fort Snelling, Minnesota. In that decision, the Committee determined that a request for waiver of recovery of overpayment of nonservice-connected disability pension benefits in the original calculated amount of $696.00 was untimely. The appellant filed a Notice of Disagreement with that determination. In November 2007, the Milwaukee VA Pension Center issued a Statement of the Case, summarizing the law and evidence used by VA to make the decision. In August 2009, the appellant filed a Substantive Appeal, accompanied by a request for a hearing before a Member of the Board.
A hearing before the Travel Section of the Board was scheduled in November 2009. The appellant failed to report as scheduled.
FINDINGS OF FACT
1. In October 2003, VA sent a letter to the appellant, care of his fiduciary, advising him that his nonservice-connected pension benefits were terminated effective July 1, 2002, and that an overpayment would be created.
2. In September 2007, the appellant filed a statement in which he requested to appeal the decision disallowing the waiver of the $696.00 overpayment.
CONCLUSION OF LAW
The request for waiver of recovery of overpayment of VA nonservice-connected disability pension benefits in the original calculated amount of $696.00 was not timely filed. 38 U.S.C.A. § 5302 (West 2002); 38 C.F.R. § 1.963 (b)(2) (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Matters -VA's Duties to Notify and Assist
When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
However, the notification procedures do not apply in waiver cases. Barger v. Principi, 16 Vet. App. 132, 138 (2002) (holding that the duties specified in 38 U.S.C.A. § 5103(a) are not applicable to requests for a waiver of overpayment). Chapter 53 of Title 38, United States Code (which governs waiver requests) contains its own notice provisions. As discussed herein, those notice provisions were satisfied.
II. Background and Analysis
The appellant is one of two children of the deceased Veteran. By virtue of a November 1977 decision, VA declared him incompetent to manage his VA benefits and permanently incapable of self support.
A January 2002 Field Examination report is of record. It notes that the appellant was verbal, able to hold a conversation, and managed all his funds independently. He appeared to be paying his bills and very good with numbers. He lived with his half-brother, I.D, the guardian of his VA benefits, in a two bedroom apartment. The field examiner recommended that the appellant be rated "competent."
A VA examination was scheduled in March 2002. The appellant failed to report.
In the absence of further medical evidence to evaluate the case, in April 2002, the RO continued the finding that the appellant was incompetent to manage his VA benefits.
In February 2003, the Fiduciary Unit of the VA Regional Office in Milwaukee received a copy of the appellant's Certificate of Marriage, dated July 17, 2002.
In March 2003, the Milwaukee VA Pension Center sent the appellant a notice, care of his fiduciary, advising him that because of his marriage, pension benefits would be terminated effective July 1, 2002. He was advised that the action would result in an overpayment. He was afforded a period of 60 days to submit evidence or argument as to why the proposed action should not be implemented.
There is no indication that the letter was sent to an improper address or that it was returned as undeliverable by the U. S. Postal Service.
In an October 2003 letter, the Milwaukee Pension Center sent the appellant a notice, care of his fiduciary, advising him that his pension benefits were terminated effective July 1, 2002, and that an overpayment would be created. He was advised of his right to appeal the decision, and advised that he had "one year from the date of this letter to appeal the decision. The enclosed VA Form 4107, "Notice of Procedural and Appellate Rights," explains your right to appeal. The letter was sent to the appellant's address of record, and was not returned by the Post Office as undeliverable.
In March 2007, the Milwaukee Pension Center received notice from the appellant that he had recently divorced and was seeking reinstatement of his pension benefits.
In September 2007, he filed a statement in which he requested to appeal the decision disallowing the waiver of the $696.00 overpayment.
In a statement received in May 2009, the appellant stated that he forgot to appeal the decision creating an overpayment of $696.00. He reported that he could not read or write very well and often did not understand many things that were sent to him.
A request for waiver of 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. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. § 1.963(b)(2) (2009).
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 receipt of the notification of indebtedness beyond the time customarily required for mailing. 38 C.F.R. § 1.963(b)(2). If the delay in the receipt of the notice of indebtedness is substantiated, the 180-day period is computed from the date of the requester's actual receipt of the notice of indebtedness. Id.
In substance, the appellant argues that he was precluded from filing a timely request for waiver of recovery of an overpayment of VA pension benefits because his mental disability caused either forgetfulness or an inability to understand the appeals notice as provided by VA. Having carefully considered the claim in light of the record and the applicable law, the Board finds, however, that the preponderance of the evidence is against the claim.
First, there is no allegation that there was a delay in the receipt of the VA notice caused by VA or due to some other mailing error. Rather, the Veteran indicated that he received his appeals right but forgot to return the form. Forgetfulness is not an exception to the rule that the individual request waiver within 180 days.
Similarly, the Board has considered whether the 180 day time period should be extended for other reasons. First, in the October 2003 letter from VA did not mention the 180 day period but instead mentioned a one year period to appeal the decision. Since the appellant was afforded substantially more time to file his appeal than was required by regulation, the Board does not find that he was prejudiced by the lack of notice of the 180 day period to provide notice under 38 C.F.R. § 1.963.
In addition, the Board has considered whether equitable tolling is permissible given the fact that the appellant has a mental disability and has been deemed incompetent for purposes of receipt of VA benefits. Equitable tolling is not permissible when a filing requirement to a court is jurisdictional. Henderson v. Peake, 22 Vet. App. 217 (2008). Here, the filing requirement was not a jurisdictional prerequisite of the Court's. Nevertheless, the statute and the implementing regulation are clear on their face and do not contain an exception to the filing deadline based on a claim of mental incapacity.
Even assuming equitable tolling is permissible under the statute, there remains no credible evidence, other than the finding of incompetency, that the appellant's mental disability precluded him from understanding the VA letter or impeding his ability to note his disagreement within the applicable time period. Merely establishing a mental disability is not enough, in the Board's opinion, to excuse the delay in the request for waiver of the overpayment.
Accordingly, for these reasons, the preponderance of the evidence is against the claim and the claim must be denied.
ORDER
The appellant's request for a waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $696.00 was not timely; the appeal is denied.
____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs