Over Payment By Va

[Rockhound]

www.va.gov/vetapp92/files2/9218771.txt

92 Decision Citation: BVA 92-18771 Y92 BOARD OF VETERANS' APPEAL

WASHINGTON, D.C. 20420

DOCKET NO. 92-01 049 ) DATETHE ISSUEEntitlement to waiver of recovery of an overpayment of

compensation benefits paid from June 1980 to February 1991,

to include the issue of whether the overpayment was properly

created.

Edited August 1, 2008 by Rockhound

[tssnave]

Rockhound,

Q1 - So, does "notproperly created" mean if the VA makes the mistake that you do not have to repay them?

Q2 - And am I to understand that the waiver of recovery of overpayment was not addressed because the debt was due to an error on the VA's part?

"Since the overpayment was not propery created, the question of waiver of recovery of the overpayment is moot, and the appeal is granted."

Thanks,

TS Snave

[Rockhound]

Rockhound,

Q1 - So, does "notproperly created" mean if the VA makes the mistake that you do not have to repay them?

Q2 - And am I to understand that the waiver of recovery of overpayment was not addressed because the debt was due to an error on the VA's part?

"Since the overpayment was not propery created, the question of waiver of recovery of the overpayment is moot, and the appeal is granted."

Thanks,

TS Snave

Sorry, can't answer your questions, at least have it mean anything. Just thought the info in this case would be of interest to someone.

[Ricky]

Rockhound,

Q1 - So, does "notproperly created" mean if the VA makes the mistake that you do not have to repay them?

Q2 - And am I to understand that the waiver of recovery of overpayment was not addressed because the debt was due to an error on the VA's part?

"Since the overpayment was not propery created, the question of waiver of recovery of the overpayment is moot, and the appeal is granted."

Thanks,

TS Snave

TS to answer your questions:

Q1 - In VA terms and law if the VA files a motion to recover an overpayment it must prove that the overpayment was "properly created". That is the veteran took some type of action to cause the overpayment. So the term "not properly created" simply means that the veteran took no action to cause the overpayment, the overpayment was due to a VA error or circumstances outside the control of the veteran. If the overpaymant has been found to be "not properly created" or caused by the veterans actions, under the principles of equity and good conscience no recovery action is taken. So yes if the mistake is soley due to VA error you don't repay it.

Q2- Yes since the overpayment was not "properly created" (caused by the veteran) the recovery of the overpayment became a moot point - VA did it on their own and can not get it back so why waste time talking about it!!!!!

Hope this helps. To win such a claim you gotta have your ducks in order. One avenue the VA did not take on this one was the pension was X amount per month, and the veteran was well aware of the amount of the payment he was due monthly, when the payment increased by X amount, which would have been quite a bit more per month, why did he not contact the VA to inquire about the increase? Not saying he should just thinking like the VA thinks. I am really surprised they did not attempt to use such an argument for while the overpayment was originally made due to a VA error, the veteran would have had to take part of the blame. The same with SSDI, you draw 900.00 per month and you know you get that little 3 percent raise every (sometimes) year. However, on year you begin to draw 1800.00 per month. Man o Man can now really see that new boat you been wanting so you figure "hey they are the govt and they know what they are doing". 5 years down the road you get that little note in the mail saying hey we have been overpaying you by 900.00 per month for the past five years resulting in a total overpayment of XXXXXX. Before you try the waiver based upon the fact the overpayment was not properly created with them you better have a whole lot of ducks in order hahahahahahahahaha

[trez]

i had an over pay ment problem you can plead hardship and tell them that but if you were negligent va will be looking for their dough back.

[mountain tyme]

Ricky...so lets say that your child began collecting chapter 35 education benifits...the Veteran notices that the VA still is paying them the child's dependant rate in there monthly check...the VEt calls the VA to let them know...then sends them a letter the next month for them to fix the problem...a few months later still receiving dependant VA benifits again the VA contacts the VA to have them do an adjustment...one year has now past...and nothing...calls the VA again and is told yes we received your letter and your phone calls are listed...and the VA is still gathering information...

Does that VET have to repay all the dependent pay due to there VA error or not deducting the pay after repeated reminders by the vet?

just a question

MT

[Ricky]

Ricky...so lets say that your child began collecting chapter 35 education benifits...the Veteran notices that the VA still is paying them the child's dependant rate in there monthly check...the VEt calls the VA to let them know...then sends them a letter the next month for them to fix the problem...a few months later still receiving dependant VA benifits again the VA contacts the VA to have them do an adjustment...one year has now past...and nothing...calls the VA again and is told yes we received your letter and your phone calls are listed...and the VA is still gathering information...

Does that VET have to repay all the dependent pay due to there VA error or not deducting the pay after repeated reminders by the vet?

just a question

MT

Just an off the wall answer: Did you mean the child "began collecting or "stopped/became inelgible to collect them. In the latter, if all is in order, (VA has been notified of the childs inelgilibity), I would say that in this instance that the overpayment was not "properly created" and on top of that the veteran has attempted to have the problems resolved. Since the VA had the proper evidence on the child to establish the payments in the first then they definitely had the proper evidence provided by the vet to stop the payments (I would hope the veteran, the school or the child notified the VA of the inelgibility to receive payments if not then VA may have a case of properly created). On top of that the vet has taken more than enough steps to have the situation rectified. I truly believe that in such a case any and all rulings would be aginst the VA. However this is just my opinion. Have you tried to research any such cases at the BVA site? If not I certainly would try to do so.

Please keep in mind that the veteran would have had a requirement to insure the VA that the child is /was no longer elgibile to receive the benefits at the time the child became inelgibile depending on the reason of inelgibility.

Edited August 11, 2008 by Ricky