Dent: Overpayment of Debts

Preston L. Dent v. McDonald, Case Number 13-2406, decided July 15, 2015 involves an overpayment created by an increase in income in a situation where the veteran was receiving a non-service connected pension. 

The veteran was receiving benefits under a non-service connected pension.  He subsequently started receiving Supplemental Security Income.  The veteran actually sent a copy of the decision to the RO along with his pension check and a letter stating he believed he is only to receive a portion of his check from the VA—“please contact me if I am wrong”.  The VA did not respond for nine months.  During those nine months, the veteran kept receiving and cashing VA pension checks.  Nine months later the VA determined an overpayment had been created.  The veteran later explained that after sending the letter “when the RO did not make an adjustment and instead continued to pay him at his regular pension rate, he assumed that he was entitled to full payment from both agencies.”  However, the VA found the debt for overpayment was properly created.

The law states an overpayment is not created when it is due solely to VA error.  An act or omission by the beneficiary or the beneficiary’s knowledge prevents an overpayment from being solely VA error.  The Court determined the veteran’s continued acceptance and cashing of pension checks with knowledge meant the overpayment was at least in part his fault.

The Court also refused to consider the issue of how much was owed by the veteran because the Board had not ruled on that issue, thought it remanded that issue for further consideration.

Judge Bartley wrote a spirited dissent that basically stated the veteran had done what he was supposed to do—inform the VA of his change in income from the SSA—and therefore he cannot be considered to be at fault.  She also rejected the idea the veteran had knowledge of the VA error because she said the record was replete with evidence the veteran was unsure what he should receive from the VA.  She laments that veterans “are forced to pay for VA’s failure to communicate consequences to veterans and to promptly respond to veteran’s income disclosures.”

The case does not appear to have been appealed to the Federal Circuit. 

Decision by Judge Moorman and joined by Judge Pietsch.  Dissent by Judge Bartley.