Preston Lee Dent v. Robert A. McDonald
2015 U.S. Vet. App. LEXIS 963
| Vet. App. | 2015Background
- Preston Dent was awarded VA non-service‑connected pension effective Feb 12, 2008, based on reported no income; award letter warned him to report income changes.
- Dent received SSA benefits (RSDI/SSI) beginning Dec 2008 and sent VA (Jan 2009) a voided December VA check with a letter indicating he believed he should receive only the difference between VA and SSA benefits.
- VA continued paying full pension checks through 2009 while VA processed SSA data and in Dec 2009 implemented reductions and discontinuance retroactive to early 2009, creating an alleged overpayment.
- The RO found the overpayment valid; Dent appealed to the Board and then to this Court challenging validity of the debt and the period for which it was valid.
- The Court considered whether 38 U.S.C. § 5112(b)(9)–(10) (erroneous award rules) apply to running awards (recurring payments) after a change in income and whether VA administrative error alone precludes creation of a recoverable debt.
- The Court affirmed the Board that a valid debt was created (Dent had knowledge and was at least partly at fault), held that “award” includes running payments, required VA to consider administrative error when raised, and remanded for calculation of the exact debt amount and appropriate effective date.
Issues
| Issue | Plaintiff's Argument (Dent) | Defendant's Argument (Secretary) | Held |
|---|---|---|---|
| Does “award” in 38 U.S.C. § 5112(b)(9)–(10) include recurring payments (running awards)? | "Award" should be limited to the initial grant and not to subsequent pay‑outs. | VA regulations treat § 5112(b)(10) as inapplicable after a change in income; error analysis applies only to initial award/rate. | Court: "award" includes payments of an award (running awards); subsections (9) and (10) can apply to recurring payments. |
| When there is a change in income, must VA still consider whether erroneous payments were "solely" due to VA administrative error under § 5112(b)(10)? | VA delay and processing error produced the overpayments; therefore VA alone is at fault and no recoverable debt should be created for payments after Dent notified VA. | VA/Secretary argued administrative‑error timing not applicable where reduction is based on change in income per § 5112(b)(4) and § 3.660; debt valid by law. | Court: VA must consider administrative error (per statute and § 3.500), but if payment was not solely agency error (e.g., beneficiary knowledge/omission), an overpayment/debt may be valid. |
| Did Dent have knowledge or commit an omission that precludes treating the erroneous payments as solely VA administrative error? | Dent timely notified VA in Jan 2009 and reasonably relied on continued VA payments; he lacked knowledge that cashing subsequent checks would create a debt. | VA: Dent’s application materials, award letter, and his Jan 2009 letter show he knew income affects pension and he nevertheless cashed checks; therefore he had knowledge and partial fault. | Court: Board reasonably found Dent had knowledge in Jan 2009 and accepted/ cashed payments despite that knowledge; debt validity affirmed. |
| Did the Board err by not deciding the exact amount of the debt? | Board failed to address amount; Dent contested amount in his NOD and Court should decide or remand for calculation. | Secretary: Amount was not properly before Court; RO and Board procedures control. | Court: Remanded — Board must further remand to RO to issue an SOC specifying exact debt and effective date; Court will not calculate amount in first instance. |
Key Cases Cited
- Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (agency deference framework)
- Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (agency interpretation of regulations entitled to deference)
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretation of its own regulations)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir.) (ordinary‑language reading of VA regulation)
- Frederick v. Shinseki, 684 F.3d 1263 (Fed. Cir.) (statutory‑interpretation tools for VA statutes)
- Heino v. Shinseki, 683 F.3d 1372 (Fed. Cir.) (use of traditional tools in Chevron step one)
- Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir.) (deference to agency regulation interpretation)
- Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (litigating positions of agencies not entitled to deference)