VA claims they overpayed me.

[PBarSr]

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

[PBarSr]

It's been a while since my last post. Regarding the debt, they did indeed reimburse me for the withholding they kept. 

In the mean time, I've had a claim recently approved (23 January 2019) granting me 80%, up from 50%. They granted me 50% for PTSD as well as 30% for sinusitis. I also claimed injury to my back, supplemented by a buddy statement from a friend I was deployed with who witnessed me hurt it jumping off the back of a deuce and a half during an exercise, as well as tinnitus, but both were denied. All of these upgrades to my disability, I owe to the VA lawyer I hired. 

My percentage shows 80% since 23 January on ebenefits. My "Intent to file" date was 31 May 2018. When should I expect to see the lump payment direct deposited to my account? What should be my next step on the back pain and tinnitus claim which were denied SC? 

Thank you all for your input. I read A LOT on this forum and have learned tremendously from my limited time here. 

[PBarSr]

It was at the regional office level I reckon. I did claim low back pain in 2006 but I don't think I had a nexus to tie it to military service. I finally found the fellow who I was with in Korea when the injury happened and got him to write me a buddy statement verifying my claim with exact dates and everything. Still got denied service connection.