Citation Nr: 0815220	
Decision Date: 05/08/08    Archive Date: 05/14/08

DOCKET NO.  02-13 354	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUE

Entitlement to a waiver of the recovery of an overpayment of 
compensation benefits in an amount calculated as $25,330.


ATTORNEY FOR THE BOARD

W. Preston, Associate Counsel


INTRODUCTION

The appellant served on active duty from November 1967 to 
April 1970.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an unfavorable determination in 
December 2001 by the Committee on Waivers and Compromises 
(Committee) at the Regional Office (RO) of the Department of 
Veterans Affairs (VA) located in St. Petersburg, Florida.  
Jurisdiction over the claims folders was subsequently 
transferred to the RO in Winston-Salem, North Carolina.

The Board remanded the veteran's case in January 2005.


REMAND

The Board remanded this appeal once before because the RO had 
failed to first develop or adjudicate the question of the 
validity of the overpayment at issue and instead jumped to 
adjudicate the issue of waiver of the indebtedness.  To 
reiterate the Board explanation from its January 2005 remand, 
it is quite clear that where the question of the validity of 
the overpayment debt is asserted, this question must be 
decided by VA prior to making a determination on the issue of 
waiver of the indebtedness.  Schaper v. Derwinski, 1 Vet. 
App. 430 (1991); see also VAOPGCPREC 6-98 (April 24, 1998).  
In spite of explicit and detailed instructions in that prior 
remand, the RO failed once again to first determine whether 
the overpayment has been properly created and assessed 
against the appellant and, contrary to the Board's 
directions, simply readjudicated the issue of waiver of the 
indebtedness.  

In a case such as this, where the remand orders of the Board 
are not complied with, the Board errs as a matter of law when 
it fails to ensure compliance.  See Stegall v. West, 11 Vet. 
App 268 (1998).  

Accordingly, the case is REMANDED to the RO or the Appeals 
Management Center (AMC) in Washington, D.C. for the following 
actions:

1.  The RO or the AMC should undertake any 
development it determines to be warranted 
and then determine whether the overpayment 
at issue in this appeal was properly 
created and assessed against the 
appellant, including (but not limited to) 
the question of whether this debt resulted 
solely from administrative error by VA.  
If this determination is unfavorable to 
the appellant, he and his representative 
should be informed in writing of the 
originating agency's reasons and bases for 
this decision and of his appellate rights.  

2.  If a debt is found to be legitimately 
assessed against the appellant, the RO or 
the AMC should next send him a Financial 
Status Report (VA Form 20-5655) and 
provide him with a reasonable period of 
time in which to complete this form and 
return it to the RO or the AMC in support 
of his waiver request.  Then, the RO or 
the AMC should decide the appellant's 
waiver request.  

3.  If the benefit sought on appeal is not 
granted to the appellant's satisfaction, 
the appellant should be furnished an 
appropriate supplemental statement of the 
case and provided the requisite 
opportunity to respond.  In accordance 
with proper appellate procedures, the case 
should then be returned to the Board for 
further appellate consideration. 

By this remand the Board intimates no opinion as to any final 
outcome warranted.

No action is required of the appellant until he is otherwise 
notified but he has the right to submit additional evidence 
and argument on the matter the Board has remanded.  See 
Kutscherousky v. West, 12 Vet. App. 369 (1999).



						
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This case must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veteran's Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).




_________________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Appeals for Veterans Claims.  This remand is in the 
nature of a preliminary order and does not constitute a 
decision of the Board on the merits of your appeal.  
38 C.F.R. § 20.1100(b) (2007).