Citation Nr: 1301505 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-37 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to waiver of recovery of overpayment of Department of Veterans Affairs (VA) disability compensation benefits in the amount of $20,079 that were terminated effective June 16, 2009 due to "fugitive felon" status. (The issues of entitlement to an increased rating in excess of 20 percent for degenerative disc disease of the lumbar spine and entitlement to total disability rating based upon individual unemployability by reason of service-connected disabilities are addressed in a separate decision). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from October 1967 to September 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 determination of the VA Regional Office (RO) in Honolulu, Hawaii. In a February 2011 letter, the RO informed the Veteran of the proposal to suspend disability benefits based on his fugitive felon status. In the April 2011 letter, the RO suspended the Veteran's disability compensation benefits from June 16, 2009 due to "fugitive felon" status. In an April 2011 written statement, the Veteran requested delay in suspension of his disability benefits, contending essentially that the suspension of benefits would cause hardship. The Virtual VA file also shows that in May 2011 the Veteran filed a request for waiver of overpayment. The Virtual VA file shows that in June 2011 Committee on Waivers & Compromises (COWC) at the RO in St. Paul, Minnesota, issued a Decision on Waiver of Indebtedness that denied a waiver of the overpayment indebtedness in the calculated amount of $20,079 that was created due to the suspension of VA disability benefits due to the Veteran's fugitive felon status. The claims file and virtual VA file do not contain a Statement of the Case regarding the overpayment issue. Under these circumstances, a Statement of the Case should be issued. The Board is required to remand, rather than refer, the issue of waiver of overpayment. See Manlincon v. West, 12 Vet. App. 238 (1999). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In an April 2011 determination, the RO suspended the Veteran's disability compensation benefits from June 16, 2009 due to "fugitive felon" status. In an April 2011 written statement, the Veteran expressed disagreement with this determination to suspend his disability benefits. The COWC at the RO in St. Paul, Minnesota, issued a Decision on Waiver of Indebtedness that denied a waiver of the overpayment indebtedness in the calculated amount of $20,079. The claims file and virtual VA file do not contain a Statement of the Case regarding this issue. Under these circumstances, a Statement of the Case should be issued. The Board is required to remand, rather than refer, this issue. See Manlincon, 12 Vet. App. 238. In the April 2011 statement, the Veteran also requested a hearing before VA. See the statement dated in April 2011. The February 2011 RO letter notified the Veteran that he had a right to request a hearing before VA. To ensure full compliance with due process requirements, a remand is required. Accordingly, the issue of waiver of recovery of overpayment is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a personal hearing before the RO. A copy of the notice sent to the Veteran referable to the scheduling of the hearing should be placed in the record. Any indicated development also should be completed. 2. Issue the Veteran and his representative a Statement of the Case on the issue of entitlement to waiver of recovery of overpayment of VA disability compensation benefits in the amount of $20,079 that were terminated effective June 16, 2009 due to "fugitive felon" status. The Veteran is advised that, for the Board to have jurisdiction on the issue of waiver of overpayment issue, he must file a timely substantive appeal responding to the statement of the case. Should the Veteran or his representative submit a timely substantive appeal, the issue of waiver of overpayment should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ J. PARKER 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) (2012).