Veteranclaims’s Blog

March 20, 2020

Single Judge Application; Board decision must be supported by a “satisfactory explanation.” McCullough v. Principi, 15 Vet.App. 272, 275 (2001); failure to make necessary credibility findings and assess certain lay evidence;

Filed under: Uncategorized — veteranclaims @ 10:50 am

” Although subject to a “narrow” scope of review before this Court, a Board decision must still be supported by a “satisfactory explanation.” McCullough v. Principi, 15 Vet.App. 272, 275 (2001). Because the Board failed to make necessary credibility findings and assess certain lay evidence, its explanation is not satisfactory and the matter must be remanded.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2288
LUCAS S. BULLER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

TOTH, Judge: The issue in this case is whether the Board’s decision not to waive veteran
Lucas Buller’s debt, which was incurred through VA’s overpayment of benefits, was arbitrary and capricious. Although subject to a “narrow” scope of review before this Court, a Board decision must still be supported by a “satisfactory explanation.” McCullough v. Principi, 15 Vet.App. 272, 275 (2001). Because the Board failed to make necessary credibility findings and assess certain lay evidence, its explanation is not satisfactory and the matter must be remanded.
In 2007, VA awarded the veteran a 70% disability rating and informed him as part of a
standard disclosure that, among other things, his benefits would be reduced upon incarceration in
a penal institution for more than 60 days for conviction of a felony. On the 61st day of
incarceration, the law requires that a veteran with a disability rating of 20% or more have benefit
payments reduced to 10% for the remainder of the confinement. 38 U.S.C. § 5313(a)(1)(A). In
October 2014, VA learned that, in October 2012, the veteran began serving a 260-month sentence
in federal prison. It implemented a retroactive reduction in benefits and assessed an overpayment
in the amount of $78,793.40.
An overpayment occurs where payments are made to a “payee or beneficiary in excess of
the amount due or to which such payee or beneficiary is entitled.” 38 C.F.R. § 1.962 (2019). The
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Secretary is authorized to recover such overpayments by offsetting future payments owed.
38 U.S.C. § 5314(a). But, if the overpayment was not obtained through fraud, misrepresentation,
or bad faith, he may also grant a partial or complete waiver if collection of the debt would be
against “equity and good conscience.” 38 U.S.C. § 5302(a) and (c).
Waiver determinations are made by VA’s Committee on Waivers and Compromises (the
committee) and are appropriate “when the facts and circumstances in a particular case indicate a
need for reasonableness and moderation in the exercise of the Government’s rights.” 38 C.F.R.
§ 1.965(a) (2019). Factors considered include the following: (1) the fault of the debtor; (2) the
balancing of faults; (3) undue hardship; (4) whether the purpose of the benefits would be defeated;
(5) unjust enrichment; and (6) whether the person seeking the waiver had detrimentally changed
position. Id.
In this case, the committee found that it would not be against equity and good conscience
to recover the debt. The veteran appealed.
The Board reviewed the committee’s determination and found, as the committee did, no
evidence of fraud, misrepresentation, or bad faith on the part of the veteran and thus that waiver
was not precluded. It further found, however, that the creation of the debt was due solely to the
veteran’s failure to report his incarceration; that, as he was incarcerated, he was unjustly enriched
through his continued receipt of benefits; that, because the penal institution provided all of his
care, he would not be deprived of basic necessities and thus any undue financial hardship was
mitigated by that circumstance; that, because VA benefits are intended to compensate for the
average impairment in earning capacity resulting from a service-connected disability in civil
occupations, and as the veteran had no earning capacity while incarcerated, collection of the debt
would not defeat the purpose of the benefits; and, finally, that the veteran did not rely to his
detriment on the overpaid benefits. Weighing all the evidence of record, the Board determined that
any claimed hardship was outweighed by these findings.
The veteran’s mother, Arlita J. Buller, represented him before the Board. She represents
him here as well. She argues that the Board clearly erred in its factual finding that the veteran did
not report his incarceration to VA and thus improperly relied on that finding to conclude that he
was at fault for the creation of the debt.
“Waiver decisions . . . 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
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in an arbitrary or capricious manner.” McCullough, 15 Vet.App. at 275. “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.” Id. “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.” Id. This includes the requirement to “analyze the credibility and probative value of
the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons
for its rejection of any material evidence favorable to the claimant.” Hedgepeth v. Wilkie,
30 Vet.App. 318, 325 (2018).
Here, the Board failed to explain its rejection of certain favorable material lay statements.
As Ms. Buller argues, the record contains her documentation of numerous interactions with VA
between 2011 and 2012 where she kept the agency abreast of the veteran’s criminal proceedings.
R. at 344. The document she specifically highlights contains details of the dates and topics of
conversation for certain phone calls as well as the VA representatives with whom she spoke. Of
note, it purportedly documents a call on September 4, 2012, (just prior to the veteran’s
incarceration) where she explained the outcome of the veteran’s criminal proceedings to two VA
representatives and received their sympathy and offers of support services. Id. If the Board were
to find this lay evidence credible, it might bear on whether VA was informed of the veteran’s
incarceration and thus whether he was at fault in creating the debt. (And, although the veteran’s
informal brief does not explicitly make this argument, this evidence might also bear on whether
the debt was validly created. See Dent v. McDonald, 27 Vet.App. 362, 365 (2015).)
Accordingly, the Board’s December 11, 2018, decision is VACATED and the matter
REMANDED for further consideration consistent with this opinion.
DATED: March 19, 2020
Copies to:
Arlita J. Buller
VA General Counsel (027)

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