Written by: Jeremy Cole

From 1993 to 2009, the Department of Veterans Affairs (“VA”) made $943 million in over-payments to veterans, and projections suggest another $1.1 billion in over-payments may be made by 2016. Although some of these payments are undoubtedly made to veterans trying to “cheat” the system, most are made to veterans simply attempting to collect the money to which they are entitled, and to whom the VA has mistakenly overpaid. More importantly, veterans who receive these payments often rely on them and have already spent them by the time the VA realizes its mistake.

The VA generally views over-payments as debts the veteran owes back to the VA. Pursuant to Federal Regulations, the VA is required to notify the veteran of these debts, including what actions the alleged debtor can take to remedy the problem. However, beyond this notice requirement, the VA is not required to take any further action.

But, Congress has specified that the VA is not entitled to recover disability compensation over-payments when they are made based on VA error without any fault on the part of the veteran. In these situations, the VA must “waive,” that is, cancel, the veteran’s alleged debt. However, because the VA is only required to notify the veteran of these debts, the VA will not waive the debt unless the veteran explicitly demands that the VA do so. To request a waiver, the veteran must submit a waiver request, and two forms to the VA: VA Form 21-4138, Statement in Support of Claim, and a Financial Status Report, VA Form 5655. By requiring the veteran to proactively challenge the VA’s debt determination, the VA has essentially created a requirement that the veteran point out to the VA its own mistake and subsequent violation of its own regulations. This roundabout process creates unnecessary hardship and stress for the veteran, who is much less likely to know the technical details of VA procedure, and often does not have the resources to effectively challenge VA decisions. The VA is supposed to aid the veteran in getting his or her benefits. By refusing to follow its own procedures until the veteran points out its failure to do so, the VA is violating its own mission, to the detriment of our veterans.

Sources:

Gregg Zoroya, Auditors: Veterans Affairs overpaid disabled veterans, USA Today (January 23, 2013, 7:37 PM), http://www.usatoday.com/story/news/nation/2013/01/23/veterans-affairs-overpaid-disabled-vets/1859879/ 

38 CFR § 1.911(d) (2013).

38 U.S.C. § 5112(b); 38 C.F.R. § 3.500 (2013).

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