Citation Nr: 1127484 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 04-31 775A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether an overpayment of VA educational assistance benefits in the amount of $8,392.53 was properly created. REPRESENTATION Appellant represented by: Donald C. Hill, Attorney ATTORNEY FOR THE BOARD S.L. Caucutt, Counsel INTRODUCTION The Veteran had active military service from November 1989 to June 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that the Veteran had received an overpayment of education benefits in the amount of $8,392.53. The Veteran subsequently perfected an appeal as to the validity of that debt. This issue was previously denied by the Board in an October 2007 decision. The Veteran subsequently appealed to the Court of Appeals for Veterans Claims (Court), and in a November 2010 Memorandum Decision, the Court vacated the Board decision and remanded the matter for readjudication. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The overpayment at issue in the present appeal, $8,392.52, was created as a result of a fraud scheme at Ramon Magsaysay Technological University (RMTU) in the Philippines. Following two VA Education Compliance Surveys, a field investigation by two VA Educational Compliance Survey Specialists (ECSSs), and an investigation by VA's Office of Inspector General (OIG), the VA concluded that sixty veterans, including the one that is the subject of this appeal, were not regularly attending classes, but were instead receiving course credit in return for buying supplies and other "gifts" for the school and for individual instructors. The current record contains summaries of the Education Compliance Surveys and field investigation, conducted in October 2002, February 2003, and May 2003, as well as a memorandum report from OIG explaining the situation at RMTU. While the conclusions provided in these reports are of probative value in the Board's adjudication, pertinent to this remand, the reports may not contain underlying evidence which will permit a full and complete evaluation specific to the Veteran that is the subject of this appeal. As such, the Board finds that a remand is necessary to obtain any additional information and evidence associated with these surveys and investigations that might contain information specific to the Veteran that is the subject of this decision, including any interviews, documentation, notes, etc. Only after such evidence has been obtained may the Board conduct its de novo review of the record. Accordingly, the case is REMANDED for the following action: 1. Make reasonable efforts to obtain any information and evidence associated with the October 2002, February 2003, and May 2003 VA Educational Compliance Surveys and field investigation, including any information that pertains specifically to the Veteran such as interviews, RMTU records, etc. Any efforts to obtain these records, including any responses (negative or positive), should be included in the claims file, and requests should continue until it is determined that such records are unavailable or that further requests would be futile. 2. Make reasonable efforts to obtain any information and evidence associated with the VA's OIG investigation, as summarized in a February 2004 report, including any information that pertains specifically to the Veteran such as interviews, RMTU records, etc. Any efforts to obtain these records, including any responses (negative or positive), should be included in the claims file, and requests should continue until it is determined that such records are unavailable or that further requests would be futile. 3. If any of the above records are unable to be located and/or obtained following reasonable efforts, the Agency of Original Jurisdiction (AOJ) should notify the Veteran that such records are not available, explain the efforts made to obtain to the records, describe any further action VA will take regarding the claim, and inform the Veteran that it is ultimately his responsibility for providing the evidence. 4. Thereafter, the AOJ should review the claims file to ensure that the foregoing requested development has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completion of the above, and any other development deemed necessary, review the expanded record, to include evidence submitted since the October 2007 Board decision, and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' 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. 2010). _________________________________________________ MILO H. HAWLEY 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) (2010).