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). (CONTINUED ON NEXT PAGE) 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).