Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) pension benefits in the amount of $52,169.41 is granted.

Citation Nr: A26069917 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 250930-614083 DATE: July 30, 2026 ORDER Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) pension benefits in the amount of $52,169.41 is granted. FINDINGS OF FACT 1. The overpayment of pension benefits in the amount of $52,169.41 was not due to the Appellant's fraud, misrepresentation, or bad faith. 2. Recovery of the debt would be against equity and good conscience and waiver in the amount of $52,169.41 is warranted. CONCLUSION OF LAW The criteria for a waiver of the recoupment of the overpayment of pension benefits in the amount of $52,169.41 have been met. 38 U.S.C. § 5302; 38 C.F.R. § 1.965. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United Staes Marine Corps from June 1950 to June 1954 with service in the Korean War. Sadly, the Veteran died in March 2015, and the Appellant is his step-daughter. The Board pauses here to express its deepest condolences to the Appellant for the loss of her mother and step-father. In the September 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the June 2025 Decision on Waiver of Indebtedness, the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Appellant would like VA to consider any evidence that was submitted that the Board could not consider, she may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) pension benefits in the amount of $52,169.41 is granted. The Appellant asserts that there is no estate from the deceased Veteran from which any debt could be paid. For VA purposes, an overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. An overpayment may arise from virtually any benefits program administered pursuant to VA law, including pension benefits. 38 C.F.R. § 1.956(a). VA regulations provide that, when an indebtedness is assessed, the debtor has the right to informally dispute the existence or amount of the debt, appeal the VA decision underlying the debt, and request waiver of collection of the debt. 38 C.F.R. § 1.911(c). These rights can be exercised separately or simultaneously. See Schaper v. Derwinski, 1 Vet. App. 430, 434 (1991). Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3 (a)(3). The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). For purposes of calculating countable income, total income may be reduced by amounts paid by a claimant for unreimbursed medical expenses that are "in excess of 5 percent of the applicable maximum annual pension rate or rates... as in effect during the 12-month annualization period in which the medical expenses were paid." 38 C.F.R. § 3.272 (g)(1)(iii). There shall be no recovery of payments or overpayments of any benefits under any laws administered by the Secretary of VA when it is determined that recovery would be against equity and good conscience. 38 U.S.C. § 5302(a). However, before the principles of equity and good conscience may afford waiver to an obligor, it must be established that the obligor was not guilty of fraud, misrepresentation, or bad faith in the creation of the overpayment. See 38 U.S.C. § 5302(c); 38 C.F.R. § 1.963(a). If the overpayment of VA benefits is not due to the Appellant's fraud, misrepresentation or bad faith, then the waiver of recovery of the overpayment of VA benefits is permitted. Here, the Committee expressly found no fraud, misrepresentation, or bad faith and the Board agrees. See June 2025 Decision on Waiver of Indebtedness. In making a waiver determination, consideration is given to the following elements, which are not intended to be all-inclusive: (1) fault of debtor (where actions of the debtors contribute to the creation of the debt); (2) balancing of faults (weighing fault of the debtor vs. the fault of VA); (3) undue hardship (whether collection would deprive the debtor or family of basic necessities); (4) defeat the purpose (whether withholding of benefits or recovery would nullify the objective for which benefits were intended); (5) unjust enrichment (failure to make restitution would result in unfair gain to the debtor); and (6) changing position to one's detriment (reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation). 38 C.F.R. § 1.965(a). By way of background, the Veteran was awarded a special monthly pension based on the need for aid and attendance in August 2022, effective April 2022. This pension award included dependent benefits for his spouse, V.R.T. The Veteran and his spouse were admitted to an assisted living facility in March 2022 with a combined monthly cost of $5,200.02. In May 2023, the Veteran's spouse, V.R.T. died and the Veteran reported the death immediately. In August 2023, the Veteran was informed that his spouse was removed from his award and his new monthly pension payment was $2,229.00. Meanwhile the Veteran submitted an application for a pension in July 2023, noting his new status as a widower. In September 2023, VA wrote the Veteran and stated, "We propose to terminate your benefits effective May 1, 2023, because your annual income for VA purposes of $43,087.00 exceeds the maximum annual limit of $31,714.00 for a veteran with one dependent with the aid and attendance allowance. Your pension benefit is reinstated effective June 1, 2023, due to the removal of your spouse's income. We propose to terminate your benefits effective August 1, 2023, because your annual income for VA purposes of $26,913.00 exceeds the maximum annual limit of $26,752.00 for a single Veteran with no dependents with the aid and attendance allowance." The Board notes that the financial evidence of record in the July 2023 application shows the Veteran's income from Social Security as $1,376.50 and pension income of $1,236.11. Since the Veteran's initial application for a pension in April 2022 listed only his Social Security benefit as his income, it appears the Veteran may have included his VA pension benefits in his declaration of income in the July 2023 application. Based on this information, VA determined that the Veteran was no longer eligible for a VA pension. In November 2023, VA wrote the Veteran stating they had learned he was "now a resident in the assisted living facility." VA explained that none of his assisted living expenses were used to calculate his pension award. The Board notes that the evidence of the Veteran's residential care was associated with the file since April 2022. In July 2024, the Veteran was sent a Demand letter in the amount of $30,944.08. The Veteran sold his home and received a lump sum payment into his bank account in January 2024; he reported it on his submitted bank statement in July 2024. He sought waiver or a repayment plan and submitted a Financial Status Report (FSR) in July 2024. In July 2024, VA responded to the information that the Veteran provided and determined that the addition of the house proceeds "exceeded the net worth limit of $138,489.00 at the date of his initial entitlement to pension benefits in May 2022;" the Board notes that the date of his benefit award was April 2022. As a result, VA increased the total amount of his debt by $21,225.33, for a new debt total of $52,169.41. It is unclear to the Board whether the Veteran's actual medical expenses for his assisted living care since March 2022 were factored into this retroactive debt amount. Prior to any adjudication on his waiver or payment plan request, the Veteran died in March 2025. In June 2025, the Committee on Waivers and Compromises (Committee) denied waiver, finding that the Veteran was at fault for not reporting changes in net worth, that he was unjustly enriched and no financial hardship to the estate was shown. The Appellant sought a reconsideration of the waiver denial and in September 2025, the Committee stated that the June 2025 decision was unchanged and the waiver request remains denied. The Appellant timely appealed to the Board in September 2025. Addressing the equity and good conscience factors set forth in 38 C.F.R. § 1.965(a), the Board finds that there was no fault on behalf of the Veteran as he had promptly informed VA of his spouse's death, his assisted living expenses, and the receipt of his home sale proceeds. Although there is no sole VA administrative error shown, the Board notes that the record as to how the debt was calculated lacked specificity, as shown above. Regarding undue financial hardship, the Board observes that the award of a pension is based on demonstrated financial need. Moreover, there is no evidence of record that the Veteran had any estate after his passing as a bank account does not constitute evidence of an estate and the Appellant has stated that there is no estate; there is no evidence of record to indicate estate assets. The Board notes the financial information of record shows his sole income was from Social Security, which did not cover the cost of his assisted living expenses. Based on the financial evidence of record, the Board finds that financial hardship is demonstrated. As to whether there was unjust enrichment, the Board is unable to determine whether the asserted debt took into account all of the Veteran's assisted living expenses and as such, the evidence is at least in equipoise as to whether the Veteran had any unjust enrichment. Thus, the Board finds there was no unjust enrichment. As the Veteran has died, the element of whether recoupment would defeat the purpose of the benefit is not for application. (Continued on the next page) ? No change of position or relinquishment of a right was shown. In sum, weighing the elements of equity and good conscience, the Board finds that the elements of fault, financial hardship, and a lack of unjust enrichment weigh significantly and persuasively in favor of the Appellant. Accordingly, the Board finds that recovery of the overpayment from the Appellant would be against equity and good conscience. 38 C.F.R. § 1.965(a). Thus, the Appellant's request for waiver of recovery of the pension benefit overpayment in the amount of $52,169.41 is granted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nelson, L. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.