finding reasons-or-bases error and remanding where Board failed to discuss all elements applicable to determination whether recovery of overpayment would be against equity and good conscience under 38 C.F.R. § 1.965(a)
How later courts described this case
- finding reasons-or-bases error and remanding where Board failed to discuss all elements applicable to determination whether recovery of overpayment would be against equity and good conscience under 38 C.F.R. § 1.965(a)
- holding that the Board must independently address the matter of bad faith before addressing whether waiver would be appropriate
- including absence of fault of debtor and undue hardship in list of factors associated with waiver of overpayment
- remanded for BVA failure “to discuss, or provide reasons or bases for not discussing, all of the elements to be considered ... pursuant to 38 C.F.R. § 1.965(a)”
Written by the judges who cited it.
The opinion
HOLDAWAY, Judge,
dissenting:
It is true, as is stated in the majority opinion, that the BVA did not specifically find, inter alia, any indication of “misrepresentation” by appellant, although had they made such a finding it certainly would have *547 been plausible. Not having done so, the six elements noted in the majority opinion had to be considered in determining whether recovery would be against equity and good conscience. The BVA opinion specifically noted the six elements, which of course means they did consider them, and, contrary to the statement in the majority opinion, did discuss the elements that were relevant, i.e., fault of the debtor and undue hardship. Under the facts of this case, none of the other elements was even remotely raised by the record. Moreover, the catchall phrase that the list of the six elements is not intended to be “all inclusive” is obviously limited by the doctrine of ejusdem generis to elements of a similar nature. This is an easy case. The only reason that there was an overpayment, which now must be repaid, is that the appellant on several different occasions failed to include Social Security income on a form that specifically and unambiguously required such income be listed. The “fault” was totally and completely hers. Interestingly enough, the appellant has never denied that. The BVA in this ease wrote a thorough and well-reasoned decision as to why they elected not to exercise the discretion that is solely theirs to waive the overpayment. The decision should be affirmed.