Jordan v. Brown

10 Vet. App. 171, 1997 U.S. Vet. App. LEXIS 266, 1997 WL 151705
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 1, 1997
DocketNo. 95-714
StatusPublished
Cited by22 cases

This text of 10 Vet. App. 171 (Jordan v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Brown, 10 Vet. App. 171, 1997 U.S. Vet. App. LEXIS 266, 1997 WL 151705 (Cal. 1997).

Opinion

NEBEKER, Chief Judge:

The appellant, Anna Jordan, appeals a May 30,1995, decision of the Board of Veterans’ Appeals (BVA or Board) which denied entitlement to a waiver of recovery of an overpayment of dependency and indemnity compensation (DIC) benefits in the amount of $22,241.50. Upon consideration of the briefs of the parties and the record on appeal, the Court will affirm the Board’s decision for the following reasons.

I. FACTS

The veteran, James E. Anderson, served on active duty in the U.S. Marine Corps from July 1946 to September 1947 and from June 1948 to April 1968. Record (R.) at 22-29. He died in March 1972 from a heart attack. R. at 32.. In May 1972, the veteran’s widow, the appellant, was awarded DIC benefits for herself and their minor son, upon a finding that the veteran’s death was service connected. R. at 39, 44. Included in the information sent regarding the DIC benefits was a page titled “CONDITION AFFECTING RIGHT TO PAYMENTS,” which stated that if she remarried, her DIC eligibility would terminate and that any checks received thereafter were to be returned to VA along with a statement showing the date of remarriage. R. at 84.

In July 1984, the appellant remarried. R. at 52. Sometime thereafter, Mrs. Jordan notified VA as to her name change (from Anderson to Jordan), and her address change. She asserts that, at that time, she informed VA of the remarriage. Appellant’s Brief (Br.) at 5-6. However, VA denies that notification as to the remarriage was received. R. at 11. Regardless, VA continued to send DIC payments to the appellant at her new address, and in her new name. R. at 88. In February 1990, VA sent a “Marital Status Questionnaire,” addressed to “Anna B. Jordan,” requesting verification as to her “unmarried status and continued entitlement to DIC.” R. at 52. On March 13,1990, a VA regional office (RO) received the completed form which reported her remarriage as of July 1984. Ibid. She also sent a letter which stated:

After remarrying, I contacted the VA Office asking what I should do with the check that I had. I was told to hold on to the check until someone contacted me letting me know if I was entitle[d] to the check or not. I kept this check [and] another one. During the conversation I gave all the information of my remarrying. After that time we move[d] three times with me reporting the moves to the VA office. After our move the checks began to come in my married name. I assumed that I was entitle[d] to the cheeks.

R. at 54. On June 22, 1990, Mrs. Jordan was informed of the overpayment of $44,483.00 in DIC benefits, and of the fact that she then owed that amount. R. at 58. In the “NOTICE OF RIGHTS” section, the letter explained:

You have the right to request a waiver of the debt and the right to an oral hearing on the waiver request. Waiver means that you will not have to pay the debt. A waiver can only be granted if you were not at fault in causing the debt or if any fault on your part is excusable, and if payment of the debt would cause a hardship.

R. at 58. She requested a waiver. R. at 60. Before the Committee on Waivers and Compromises, Mrs. Jordan testified that she never read the back of the DIC entitlement letter which specified that remarriage would change her entitlement to benefits. R. at 76. She was also informed that the questionnaire she had received in February 1990 represented a new VA procedure, initiated “to [173]*173prevent situations like what happened in” her ease. R. at 76-77.

On October 17,1990, the Committee issued its decision, whieh granted a partial waiver of the indebtedness. R. at 87-89. Notably, the decision stated:

A complete review of our file fails to show what report was used to effect the change of name. There is also no record of any request to change addresses, or to inquire into your continued eligibility made by yourself or any others. However, there is a micro tape record of checks having been mailed to you under your new name and address changes have taken place. Some fault on the part of the VA may exist and since the law states that any doubt must be resolved in your favor, we must agree that continued payments past the date of your remarriage were caused by VA error.
After full consideration of all the elements] of equity and good conscience, it has been determined that a full waiver cannot be granted. Resolving doubt to your favor however, one half of the debt will be waived due to possible VA error and one half of the debt must be repaid as your actions were shown to contribute at least in part to the creation of the debt.

R. at 88-89. The partial waiver reduced the amount of the overpayment balance to $22,-241.50. R. at 95. The RO received Mrs. Jordan’s Notice of Disagreement as to that decision in November 1990 (R. at 102-03), and issued a Statement of the Case in March 1991 (R. at 105-11). At a personal hearing in October 1991, Mrs. Jordan testified that, despite repeated phone calls, the DIC checks continued to be mailed to her at their new address, and in her new name. R. at 138-39. In November 1991, the Committee confirmed and continued the previous partial grant of a waiver of indebtedness. R. at 151. Following a remand by the Board for further development (R. at 163-66), the Committee again continued and confirmed its previous decision in November 1993 (R. at 173). In that decision, the Committee stated, ‘VA also bears fault. Although the claims file does not contain any notification from you of your remarriage, development should have been made when you requested a name change on your benefits payments, that is, VA should have inquired into your marital status.” Ibid. In August 1994, after reopening Mrs. Jordan’s claim for reconsideration, the Committee de- ■ termined that no change was warranted in the prior decision. R. at 205.

In the BVA decision here on appeal, the Board framed the issue as Mrs. Jordan’s entitlement to a full waiver of the moneys that VA had overpaid her, i.e., waiving the remaining $22,241.50. R. at 5. The Board concluded that because the creation of the debt was not solely due to VA error, the debt was properly created, and further, that it would not be against the principles of equity and good conscience to recover the overpayment from the appellant. R. at 8. In the section entitled Findings of Fact, the Board stated, inter alia,

3. VA does not bear sole responsibility for the creation of the overpayment as the RO did not have actual notice of the appellant’s July 1984 remarriage until March 1990.
4. The appellant bears significant fault with respect to creation of the indebtedness by virtue of her failure to promptly notify VA of her remarriage and continuing to accept DIC benefits.
5. VA bears minimal fault with respect to creation of the indebtedness by virtue of its failure to inquire as to the appellant’s marital status upon notification of her name change in 1984.
6. There is no indication of fraud, misrepresentation, or bad faith by the appellant.

R. at 7. The Board found that VA

did not have actual notice of the appellant’s remarriage until March 1990. Although the appellant asserts that she notified VA by phone of her remarriage, the folder does not reflect that the VA received this information.

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Cite This Page — Counsel Stack

Bluebook (online)
10 Vet. App. 171, 1997 U.S. Vet. App. LEXIS 266, 1997 WL 151705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-brown-cavc-1997.