Citation Nr: 1312746 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-48 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether an overpayment of Chapter 30 Education Benefits was properly created. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from January 1996 to January 2000; and he is currently on active duty in an Active Guard/Reserve (AGR) status with the Kentucky Army National Guard since at least June 1, 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the St. Louis Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND In September 2008 the Veteran submitted an application (VA Form 22-1990) for VA Education Benefits-Montgomery GI Bill Active Duty, for classes scheduled to commence on January 5, 2009. In his application the Veteran indicated that he was currently on active duty. He also advised that in addition to the benefits being applied for based on his prior active duty, he planned to receive tuition assistance from the Kentucky National Guard. He added that he had already applied for tuition assistance. In a Certificate of Eligibility dated in October 2008 the St. Louis RO notified the Veteran that he was entitled to Chapter 30 VA education benefits, and that the education benefits must be used before January 31, 2010. In correspondence received by VA in February 2010 requesting an extension of his delimiting date (including a brief letter, an Application for VA Education Benefits, and AGR Program Orders) the Veteran reported that he had enlisted into the active duty National Guard on May 1, 2005, and was still on active duty. He further stated that he was currently in college and in need of continued GI Bill benefits. The AGR orders note he was ordered to active duty with a reporting date of June 1, 2005. On February 27, 2010 the RO obtained information through Veterans Information Solution providing information, inter alia, on the Veteran's active duty service periods and reserve and national guard active duty periods. This document indicates that the Veteran was with the Army Nation Guard beginning April 8, 2005 and that he is on AGR status. On March 2, 2010 the RO contacted the Veteran's school to determine the tuition and fee amounts for the relevant periods from January 2009 to May 2010. In a March 4, 2010 action, the RO reduced the education benefits for the relevant periods from January 2009. There is no letter to the Veteran accompanying this action located in the record. In a letter to the Veteran dated March 19, 2010, the Debt Management Center in St. Paul, Minnesota, advised him that he had been paid $9,017.93 more than he was entitled because his entitlement to education benefits had changed. In a Notice of Change in Student Status dated May 21, 2010, the Veteran's school advised VA that the Veteran's last date of attendance had been April 15, 2010. In a June 2010 letter addressed to the "Waiver Board" the Veteran expressed his disagreement with the indebtedness and asked for a waiver. In a letter dated August 14, 2010, the Veteran reported that he was active duty National Guard, had previously served in the Marine Corps from 1996 to 2000, and had started attending classes at a local community college in January of 2009. He added that he had taken a total withdrawal from classes in April of 2010 because of health issues, including a period of hospitalization. In a letter to the Veteran dated June 14, 2010, the St. Louis RO advised the Veteran that, with regard to his enrollment during the term that began on January 11, 2010, he had been paid more than he was due; that his payments had been reduced to $369.10 per month beginning January 11, 2010; and that his payments were stopped on April 15, 2010. The RO explained that school records showed that the Veteran had withdrawn from all courses on April 15, 2010, and that VA had received nothing to show that the change was due to reasons beyond the Veteran's control. The RO added that the Veteran would receive another letter if there was a debt. No such letter is in the record and it is unclear whether an additional debt was created. In a letter to the Veteran dated August 25, 2010, the St. Louis RO stated that it had reviewed the Veteran's Letter of Appeal dated March 14, 2010, in which the Veteran had requested a debt waiver. The RO responded that a waiver could not be considered on the claim being appealed until the appeal process was completed, and that such appeal process took approximately 6 to 12 months to complete. In November 2010 the St. Louis RO issued a Statement of the Case advising the Veteran that an unspecified debt was valid because the Veteran had been paid Chapter 30 benefits at "veteran rates" based on "veteran status," instead of tuition and fees based on active duty status. In December 2010 the Veteran submitted a substantive appeal (VA Form 9). It is not clear from the record whether all relevant documentation is included in the file before the Board. In this regard, there is no letter in the file advising the Veteran that his education benefits were granted or the amount of the benefits being paid. Such letter may have a bearing on whether the Veteran knew he was being paid as a veteran versus being paid based on active duty status. As the question of administrative error exists, in that the Veteran specifically indicated on his claim form that he was on active duty, the extent of the Veteran's knowledge as to the amount being paid is relevant. In this regard, when VA makes an administrative error or an error in judgment that is the sole cause of an erroneous award, VA must reduce or terminate the award effective the date of last payment. See 38 C.F.R. § 21.7135(v)(2); see also VA Manual 22-4, Part III, § 2.03. Thus, on remand, the RO should attempt to associate any award letter associated with the grant of GI Bill benefits for the period involved in the overpayment. If no letter exists or is the letter is not available, a notation to that effect should be placed in the education file. Additionally, despite a notice letter being associated with the June 14, 2010 adjustment to the Veteran's education benefits being included in the file, there is no letter in the file associated with the March 4, 2010 adjustment that presumably resulted in the overpayment at issue. Such letter should also be obtained and associated with the education file. If no letter exists or is the letter is not available, a notation to that effect should be placed in the education file. Unfortunately, the RO did not specify the amount of the overpayment in its November 2010 Statement of the Case (SOC). There is also no accounting in the claims file that shows how the debt was calculated. Indeed, the RO only discussed benefits paid since August 2009 in the SOC, yet the March 4, 2010 adjustment appears to reflect that benefits were reduced beginning with the January 2009 semester. On remand a detailed accounting which shows how the debt was calculated should be prepared. Moreover, as noted above, the record raises the question of whether this case involves administrative error. Pursuant to 38 CFR § 21.7135(v)(2), when VA makes an administrative error or an error in judgment that is the sole cause of an erroneous award, VA must reduce or terminate the award effective the date of last payment. On remand, the RO/AMC should specifically consider whether all or part of the debt involved in this case is the result of administrative error. See 38 C.F.R. § 21.7135(v)(2); see also VA Manual 22-4, Part III, § 2.03. The Supplemental Statement of the Case (SSOC) thereafter issued if the claim remains denied in part or in full should provide the pertinent laws concerning administrative error in addition to a discussion of the basis for the conclusion regarding administrative error. Finally, the Board notes that in August 2010 the RO advised the Veteran that his request for a waiver would not be considered until the appeal process was completed and that the appeal process averages 6 to 12 months. It does not appear from the record that the Veteran has had his waiver request processed. As appeals for waiver and validity of the debt are frequently forwarded to the Board together and the Court has considered both issues in the same decision as well, the Board sees no reason at this time to further delay consideration of his waiver request if the debt continues to be deemed valid by the RO/AMC on remand. Thus, if the appeal concerning the validity of the debt remains denied on remand, in the absence of relevant statute or regulation prohibiting such, the RO/AMC should process the Veteran's waiver request. However, the waiver issue should only be returned to the Board if a timely appeal is perfected. Accordingly, the case is REMANDED for the following action: 1. Prepare an audit that shows the total amount of the overpayment and how the overpayment was calculated; i.e., a detailed accounting of the nature and amount of monthly payments to the Veteran during the period beginning January 2009. A copy of that audit must be included in the education file. 2. Associate with the education file the notice letter(s) advising the Veteran of his award of education benefits for the period beginning in January 2009 and any additional letters pertaining to subsequent semesters. If no such letters exist, a notation to that effect must be placed in the education file. 3. Associate with the education file the notice letter advising the Veteran of the March 4, 2010 action by the RO to reduce his education benefits. Additionally, any letter from the Debt Management Center pertaining to the June 2010 reduction for termination of school attendance should also be associated with the file. If no such letters exists, a notation to that effect must be placed in the education file. 4. Adjudicate whether the overpayment in question, in whole or in part, was the result of administrative error (see 38 C.F.R. § 21.7135(v)(2)). 5. After the above has been completed to the extent possible, the RO/AMC should again review the record. If the debt is not expunged in full, issue an SSOC that includes the relevant laws pertaining to administrative error and explains the basis for the conclusion. The Veteran and his representative should be provided with an opportunity to respond before the case is returned to the Board. 6. If the debt is not expunged in full, adjudicate the Veteran's request for a waiver of the debt following any development deemed necessary. Such issue should only be returned to the Board if the Veteran files a timely appeal following notice of the waiver decision. 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). _________________________________________________ K. A. BANFIELD 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).