Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • hohomepage-banner-2024-2.png

  • 27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • donate-be-a-hero.png

  • 0

VA claims they overpayed me.

Rate this question


PBarSr

Question

First some background. I filed for disability based on obstructive sleep apnea back in 2000 and was granted 50% disability in 2001. I was granted married rate with two dependents (step sons) but that same year we divorced. I immediately sent written notification to the VA, which shows up in my VA file, that I would like to change my dependent status to single and zero dependents. I spoke to a VA representative later that year to make certain i was receiving the correct amount of monthly benefit and they verified it as accurate. In 2006 the VA sent me another verification of dependents form and I returned it marked single and zero dependents. This also shows up in my VA file. I am now a father since 2011 and remarried since 2015, but I didn't think to contact the VA to update my dependent info. 

Now fast forward to this year... I hired an attorney, Andrew McKeown on the suggestion of an Air Force buddy, to try to get me more disability on some items that were given service connection, but were given 0%. Two months after hiring him, and the new claim was active, I received a "verification of dependents" form, which I filled out showing both my son and my wife and their respective date of birth and date of marriage. I received back from the VA a notification that they had received this form, and that I had been over payed since 2001! The supposed debt was to the tune of $16,777. The letter explained that I could dispute the debt and that if I didn't, they would assume it is valid and would start withholding my monthly entitlement until the debt was satisfied. I immediately forwarded this to my lawyer and he responded to them via fax and email with a letter disputing the debt which cited the two separate occasions that I reached out to them voluntarily to update my dependents to try to avoid this very scenario. He was able to verify that these documents were in my VA file. On August 1, sure enough, I didn't get a disability check. When I call the VA debt management office, they give a standard answer that I can "submit a financial statement and get a reduction of the amount they are withholding". But by law, they aren't supposed to be withholding my check at all until a decision on the validity of the debt is made. My lawyer argued that the debt should be waived due to "equity and good conscience". Below is a copy of his letter to the VA:

 

July 10, 2018
Veteran, Patrick Barnes XXX-XX-XXXX, challenges the validity of the debt described in the letter dated June 29, 2018 from the VA Debt Management Center in the amount of $16,777.48. Additionally, he requests the $16,777.48 be waived as “equity and good conscience” indicate that the debt should not be collected.
A review of the Veteran’s file shows that the Veteran submitted a VA Form 21-4138 dated June 21, 2001 requesting that his wife and her two children be removed from his service connected award and that he be paid as a single service-connected Veteran. This was because he was recently awarded service connection and his wife, who is also a Veteran, was previously claiming him as well as her dependent children. On that 4138 is a handwritten note, ostensibly written by a VA employee, stating “Called + left message for vet that info is correct + to call VA if he has additional questions -CB.” Veteran in good faith fully attempted to receive only that to which he was entitled. As far as he knew, he was fully entitled to the amounts he later received.
Further, on page 14 of a VA Form 21-526 submitted April 19, 2006, Mr. Barnes indicated that he had “No” dependent children. Thus, on separate submissions to the VA, Mr. Barnes informed the agency that he had no dependents for which he believed he was entitled to additional benefits.
It is only because of administrative error on the VA’s part in not taking timely and appropriate action to adjust his award, that the current overpayment was generated. There is no evidence that Mr. Barnes actively or passively sought to collect benefits to which he was not entitled. Although there is a VA Form 21-0820 dated February 2, 2010 stating, “Veteran verified married to wife Kimberly w/ 2 dependents Zachary + Mario,” Mr. Barnes has no recollection of confirming this information to any VA employee around this date. Further, the unknown (and therefore unaccountable) VA employee failed to certify that he or she properly identified the caller using the ID protocol or that he or she notified the person contacted that the purpose of the call was evidentiary and any statements was could result in a change to his VA benefits. Therefore, this incomplete 21-0820 has no probative value on whether Mr. Barnes had any knowledge that he was receiving anything but what he was entitled to.
The first indication of overpayment Mr. Barnes received was in the form of a letter from the VA dated June 18, 2018, which informed Mr. Barnes that he was overpaid for his benefits. The letter also informed him that he would be receiving a separate letter detailing the overpayment. Additionally, it informed him that a separate letter from the VA’s Debt Management Center would inform him of the amount of overpayment and how to repay this debt. Although he has
received a letter informing him of the amount of overpayment, he has receiving no explanation for the reasons the VA determined him to have been overpaid.
It is only based on our own review of Mr. Barnes file that we have concluded that the overpayment resulted from additional amounts paid based on Mr. Barnes former wife and her children. This was information that Mr. Barnes, on his own initiative, submitted to the VA to avoid the very scenario he now finds himself in. To require Mr. Barnes to be forced to pay back $16,777.48 that he was unaware he was not entitled to would be against equity and good conscience. As such the amount should be found invalidated due to VA administrative error and waived.
___________________________________
VA Accredited Attorney
Andrew J. McKeown, Esq.
VA POA Code# 38803
CA Bar # 309535

 

I guess my question is, what recourse do I have? They have not responded to my lawyer as of this time. He has verified that they did in fact receive this correspondence, but meanwhile I'm still not getting my disability check. Does anyone on these forums have any suggestions on what I should do next? I thank you in advance if you've read this far, and I appreciate any guidance you may provide. 

 

Thanks,

Pat

Link to comment
Share on other sites

  • Answers 8
  • Created
  • Last Reply

Top Posters For This Question

Recommended Posts

  • 1
  • Moderator

If this letter finds its way to the debt management center, you "should" get a decision on it.  

Debt management has their own form, and it includes 2 things:

1.  Reason you dont think you owe the money.

2.  How/if it would be an "undue burden" on you financially, so you need to submit "financial information".   

    Something similar happened to me, I wrote debt management, and received a decision that my 6000 something debt was "waived", that is, my waiver was granted.  Like your attorney, I pointed out that I informed VA of my dependent changes, and it was not my fault they did not process these changes promptly.  I further explained that repayment of this debt would create a burden, since my income was only about 1000 per month at that time, which was below the poverty level.  

Link to comment
Share on other sites

  • 1

Congratulations on the upgrade.  Was your case at the BVA or RO? 

If the denial was at the BVA you would need new and material evidence to reopen your claim. 

If your decision was at the RO level you would read the denial and decide if any evidence was left out or mishandled.  You can file an NOD or an appeal to the BVA.

Link to comment
Share on other sites

  • 0
On 11/29/2018 at 12:52 PM, PBarSr said:

around this date. Further, the unknown (and therefore unaccountable) VA employee failed to certify that he or she properly identified the caller using the ID protocol or that he or she notified the person contacted that the purpose of the call was evidentiary and any statements was could result in a change to his VA benefits. Therefore, this incomplete 21-0820 has no probative value on whether Mr. Barnes had any knowledge that he was receiving anything but what he was entitled to.
The first indication of overpayment Mr. Barnes received was in the form of a letter from the VA dated June 18, 2018, which informed Mr. Barnes that he was overpaid for his benefits. The letter also informed him that he would be receiving a separate letter detailing the overpayment. Additionally, it informed him that a separate

So I spoke with the VA Debt Management center today. They agreed to an extended repayment plan (first and foremost) as well as refunding me $700. They also accepted my request for a waiver. If my complete amount is waived they will refund everything they have withheld to this point. At least it's something! 

Link to comment
Share on other sites

  • 0

I also reached out to my local Congressional representative and got a response from him today saying that he is inquiring with the VA on my behalf. I sent him my version of what happened, as well as the letter from my lawyer and I, requesting a waiver with all the supporting info included. I told him what I would like to see happen (a full waiver of the debt as well as back pay for what the VA has withheld). I'll post any updates on here for anyone who is interested.

Link to comment
Share on other sites

  • 0

Official correspondence from the Debt management center and the Waiver Comittee! They agree with my assessment and agreed to waive $15,356,48, leaving a balance of $1421.00, which since they began withholding my entire entitlement back in September, was paid months ago. I'll look for them to reimburse me for what they withheld, minus the $1421 in the next couple of months. 

 

On a side note, I applied for an increase in my disability back in June for Sinusitis, Tinnitus, PTSD, low back pain, and radiculpathy in both legs. I received a C&P exam for sinusitis, tinnitus, and PTSD but not for the back and leg pain. I even included a buddy statement on official VA form 21-4138 from a coworker who witnessed me injure my back on exercises in South Korea back in 1997. I was urged NOT to seek medical attention unless I was a xxxxx, and my younger guillable self followed along and self treated my condition. ENT doctor concurred that I indeed have a verifiable worse case of sinusitis, and a shrink suggested that I indeed have a  legitimate case of PTSD that would benefit from therapy. I'm a 50% disabled vet right now, and by mine and my lawyer's best guess, I'll be increased to 80% pending appeal of the low back and legs pain issue. Anyhow... just sharing my experience with yall regarding my request for a waiver.

Oh yeah, I'm not certain if it made a difference or not, but I did reach out to my local US congressman and he did respond and contact the VA on my behalf. 

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use