holding that claimant’s statement that “she did not recall receiving the notice of indebtedness” did not constitute “clear evidence” to rebut the presumption that notice was properly sent
How later courts described this case
- holding that claimant’s statement that “she did not recall receiving the notice of indebtedness” did not constitute “clear evidence” to rebut the presumption that notice was properly sent
- "The Court is precluded by statute from considering any material that was not contained in the 'record of proceedings before the Secretary and the Board.'" (quoting Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1992))
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 00-231
ROSEMARY MCCULLOUGH , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Chief Judge, and HOLDAWAY and GREENE, Judges.
ORDER
The appellant, Rosemary McCullough, the widow of veteran James A. McCullough, appeals
a November 1999 decision of the Board of Veterans' Appeals (Board of BVA) that denied, as not
timely filed, a request for waiver of recovery of overpayment of improved death pension benefits.
The appellant, through her daughter, filed an informal brief, and the Secretary filed a motion for both
summary affirmance and to strike the extra-record material that the appellant submitted to this Court
in the form of an attachment to her brief.
Section 7252(b) of title 38, U.S. Code, requires that this Court's review "be on the record of
proceedings before the Secretary and the Board." See Moore v. Derwinski, 1 Vet.App. 401, 406
(1991). The Court is precluded by statute from considering any material that was not contained in
the "record of proceedings before the [Secretary] and the Board." Rogozinski v. Derwinski, 1
Vet.App. 19, 20 (1990). Several of the documents submitted by the appellant predate the BVA
decision, and thus could potentially be included in the record on appeal. However, it does not appear
that any of the documents attached to her brief are relevant to the only issue on appeal (i.e., whether
she filed a timely request for a waiver of indebtedness). Thus, those documents need not be
considered because they are not relevant to the issue presented. Furthermore, the Court will strike
those documents that postdate the BVA decision as being extra-record material submitted by the
appellant.
The veteran served in the United States Marine Corps from June 1943 until February 1946,
and died in August 1971. In September 1971, the appellant submitted a claim for death pension
benefits, which was ultimately awarded. Apparently, the appellant began receiving Social Security
Administration (SSA) benefits in December 1993, and, in October 1994, VA notified the appellant
that her VA pension was being discontinued because her SSA benefits exceeded the maximum
allowable annual income rates under her VA pension program. In November 1994, VA notified the
appellant that she had received an overpayment of benefits in the amount of $4,796 and explained
that she had a right to request a waiver of the repayment obligation so long as the request was
received within 180 days from the date of the notification. The appellant did not submit her request
for a waiver until April 1997. VA denied the request because it was not received within the 180-day
period required by both statute and regulation. At a hearing in March 1999, the appellant and her
daughter both indicated that they did not recall receiving the notice sent by VA in 1994. The
appellant's daughter also testified that she forwarded the appellant's mail to the appellant unopened,
with the exception of one notice she opened in 1997, which prompted her to request a waiver on her
mother's behalf. When the requested waiver was denied by VA, the appellant appealed to the Board.
In its November 5, 1999 decision, the Board found that VA had notified the appellant on
November 6, 1994, of her overpayment and her right to request a waiver of the overpayment within
180 days; and that the appellant had filed a request for the waiver in April 1997, well after the
prescribed 180-day period. The Board concluded that, because the appellant had not timely filed her
request for waiver, her claim must be denied.
Pursuant to 38 U.S.C. § 5302(a):
There shall be no recovery of payments or overpayments . . . of any benefits under
any of the laws administered by the Secretary whenever the Secretary determines that
recovery would be against equity and good conscience, if an application for relief is
made within 180 days from the date of notification of the indebtedness by the
Secretary to the payee, or within such longer period as the Secretary determines is
reasonable in a case in which the payee demonstrates to the satisfaction of the
Secretary that such notification was not actually received by such payee within a
reasonable period after such date.
See also 38 C.F.R. § 1.963 (b)(2)(2000) ("A request for waiver of an indebtedness . . . shall only be
considered: . . . if made within 180 days following the date . . . a notice of indebtedness [was] issued
. . . . The 180 day period may be extended if the individual requesting waiver demonstrated . . . that,
as a result of an error by either the Department of Veterans Affairs or the postal authorities, or due
to other circumstances beyond the debtor's control, there was a delay in such individual's receipt of
the notification of indebtedness . . . ."). Waiver decisions, and the review of such decisions by the
BVA, are subject to review by this Court to determine whether the statutory standard was applied
in accordance with the regulatory guidance or whether the decision was made in an arbitrary or
capricious manner. See 38 U.S.C. § 7261(a)(3)(A); Cullen v. Brown, 5 Vet.App. 510 (1993); Smith
(Barbara) v. Derwinski, 1 Vet.App. 267 (1991). The scope of review under the "arbitrary and
capricious" standard is narrow and does not permit the Court to substitute its judgment for that of
the Board. See Kaplan v. Brown, 9 Vet.App. 116, 119 (1996). "If the Board articulates a satisfactory
explanation for its decision, including a rational connection between the facts found and the choice
made, the Court must affirm." Jordan v. Brown, 10 Vet.App. 171, 175 (1997); see also Gilbert
v. Derwinski, 1 Vet.App. 49 (1990).
Both the statute and the regulation governing the waiver of indebtedness clearly require that
an application for such waiver be received within 180 days from the date on which notice was sent
to the payee. The only possible extension of that period requires both the Secretary's discretionary
granting of an extension of time and a showing by the payee that there was a delay in the actual
receipt of the notification of the indebtedness caused by some circumstances outside of her control;
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for example, an error on the part of VA or the U.S. Postal Service. 38 U.S.C. § 5302(a); 38 C.F.R.
§1.963(b)(2); see also Bailey v. West, 160 F.3d 1360 (Fed.Cir. 1998) (en banc). While the appellant
indicated that she did not recall receiving the notice of indebtedness, "[t]here is a presumption of
regularity under which it is presumed that government officials 'have properly discharged their
official duties.'" Ashley v. Derwinski, 2 Vet.App. 307, 308-09 (1992) (citing United States v.
Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). Therefore, VA is presumed to have properly
discharged its official duty to mail the appellant a notice as to her indebtedness. While "[t]he
presumption of regularity is not absolute; [and] it may be rebutted by the submission of 'clear
evidence to the contrary,'" id. at 309 (citing Rosler v. Derwinski, 1 Vet.App. 241, 242 (1991)); see
also YT v. Brown, 9 Vet.App. 195 (1996), an appellant's assertion of nonreceipt of a notice is not
sufficient to overcome the presumption of regularity that VA properly mailed such notice to her in
the regular course of business. See Mason (Sangernetta) v. Brown, 8 Vet.App. 44, 55 (1995)
("appellant's statement of nonreceipt, standing alone, is not the type of 'clear evidence to the contrary'
which is sufficient to rebut the presumption"); Mindenhall v. Brown, 7 Vet.App. 271, 274 (1994).
Here, the appellant indicated that she did not recall receiving the notice of indebtedness. She
does not dispute that she filed the request well after the 180-day period expired, nor did she present
"clear evidence to the contrary" to rebut the presumption that the notice was, in fact, properly mailed
to her. While the Court is not unsympathetic to the circumstances surrounding the appellant's case,
the fact remains that she has not demonstrated that the BVA committed either legal or factual error
that would warrant reversal or remand. This Court, being a court of law, must affirm the BVA's
decision. See Gilbert, supra.
On consideration of the foregoing, it is
ORDERED that the Secretary's motion to strike the extra-record materials submitted by the
appellant as an attachment to her brief is granted to the extent that such material is not already of
record. It is further
ORDERED that the Secretary's motion for summary affirmance is granted; the Board of
Veterans' Appeals decision of November 5, 1999, is AFFIRMED.
DATED: November 8, 2001 PER CURIAM.
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