Citation Nr: 1314656	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  10-47 074A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a waiver of recovery of an advance payment of educational assistance benefits in the amount of $3,000.00.


ATTORNEY FOR THE BOARD

G. Wasik, Counsel


INTRODUCTION

The Veteran served on active duty from March 1965 to March 1971.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 administrative decision of the Department of Veterans Affairs (VA) Education Center in Muskogee, Oklahoma.  This decision of the Committee on Waivers and Compromises (Committee) notified the Veteran that he was responsible for repayment of a debt in the amount of $3,000.00 for an advance payment of educational assistance benefits.  The Veteran disagreed with the denial of his waiver request in August 2010, and timely perfected his appeal in December 2010.

The Veteran was scheduled for a Board hearing in February 2012.  He failed to appear for the hearing without explanation and has not requested that he be scheduled for another Board hearing.  Therefore, his hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d) (2012).


REMAND

In December 2009, the Veteran applied electronically for an advance payment of $3,000.00 for education benefits.  A Treasury check was issued to the Veteran in the amount of $3,000.00 the same month.  In February 2010, VA established a debt for the advance payment.  The Veteran was sent notification of the outstanding debt via correspondence dated in February 2010.  The Veteran has requested waiver of collection of the advanced payment.  In June 2010, the Committee denied the Veteran's request for waiver of collection of the advanced payment.  The Committee found that the Veteran had acted in bad faith by requesting the advanced payment for education benefits when he was not enrolled in school for the fall of 2009 and had not applied for educational benefits.  In his August 2010 notice of disagreement, the Veteran argued that he did have evidence documenting that he was enrolled in an education program in 2009 which complies with the loan requirements and that he also had applied for VA educational benefits at the appropriate time.  The Veteran has not submitted evidence of his enrollment in education courses in 2009 or evidence that he applied for VA educational benefits.  As this was the basis for the Committee's determination that the Veteran acted in bad faith, the Board finds that the Veteran should be contacted and requested to provide the evidence of his enrollment in classes in the fall of 2009 which complies with his advance payment requirements as well as evidence that he applied for VA education benefits.  

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

1.  Contact the Veteran and request that he submit documentation showing that he was enrolled in a qualifying educational course in the fall of 2009 and documentation that he had applied for VA educational benefits for the fall of 2009.  

2.  Undertake any other indicated development.

3.  Then, readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, furnish the Veteran an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate action.

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

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).


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This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court 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).



_________________________________________________
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) (2012).