Citation Nr: 1315952 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 10-44 326A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether an overpayment of disability compensation benefits, in the amount of $3,411, was properly created. (The issues of entitlement to additional compensation for a dependent grandchild, whether new and material evidence has been received for entitlement to service connection for pulmonary tuberculosis and entitlement to service connection residuals of a rib fracture are the subject of a separate Board decision.) ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran had beleaguered service from December 1941 to May 1942, prisoner of war (POW) status from May 1942 to October 1942, and regular Philippine Army service from April 1945 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board notes that the Veteran perfected his appeal in this matter in October 2010. At that time he indicated that he wanted to have a Travel Board hearing in his case. The Veteran later withdrew his request for a Board hearing, in writing, in October 2011. See 38 C.F.R. § 20.704(e) (2012). 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. VA will notify the Veteran if further action is required. REMAND The Veteran in this case is not represented. Evidence of record reflects that he was diagnosed with age-related cognitive decline since a VA examination in September 2005. The RO issued a decision in March 2010 that held the Veteran was overpaid in the amount of $3,411 in additional compensation for his spouse. The RO based this determination on the Veteran's failure to report the death of his spouse when she died in January 2006. The RO cited to the Veteran's submission of a VA Form 21-686c, Declaration of Dependents Status, in November 2009, and a public record of the spouse's death in January 2006 as evidence received in a statement of the case issued in September 2010. In short, the RO said the Veteran received additional compensation for his spouse from the time of her death until January 31, 2010. Thus, the basis for the determination of the period of overpayment. The Board notes that the RO was presented with evidence of the death of the Veteran's spouse years earlier. In particular, the Veteran had submitted a claim for receipt of special monthly compensation (SMC) to include aid and attendance benefits. In that regard he was afforded a number of VA examinations for the development of that claim in September 2006. A mental health examination from September 2006 reported that the Veteran's wife had died in January 2006. This examination report was reviewed by the RO in adjudicating the Veteran's claim in October 2006. The Veteran was determined to be competent. The rating decision cited to findings from the examination in reaching the conclusion that the Veteran was competent. The Veteran again received a VA mental health examination in August 2007. The examiner provided the same notation of the death of the Veteran's spouse in January 2006. Although the Veteran was again diagnosed with age-related cognitive decline, he was found competent to handle his VA benefits. A rating decision from September 2007 denied the claim for aid and attendance benefits. In so doing, the evidence from the August 2007 examination was cited, including the determination that the Veteran was competent. Because the Veteran did not receive any increase in his disability compensation, the notification letters for the rating decisions of October 2006 and September 2007 did not contain a reference that he continued to receive additional compensation for his spouse. In addition, there was no admonition to report any change in his marital status. The Veteran appealed his claim for SMC to the Board. Thus, a period of time went by without action at the RO. In April 2009, the Veteran made a submission to the RO to inquire about the requirements in order to avail survivor benefits to his sons and daughters. He also submitted a VA Form 21-4138, Statement in Support of Claim, that was modified to represent a claim for benefits from Filipino Veterans Equity Compensation Fund (FVECF). There were a number of blocks requiring information. The Veteran listed the name of his spouse and her date of birth. In the block that asked about the address of the spouse, he reported that she was deceased. He did not provide a date for her death. The Board notes that the Veteran submitted another Form 21-4138, with the same FVECF blocks, in May 2009. He did not identify his spouse as deceased on this form but listed her address to be the same as his. The Board issued a decision that granted entitlement to SMC, based on the need for aid and attendance, in September 2009. The RO implemented the Board's decision by way of a rating decision issued that same month. The notice of the rating action informed the Veteran that he was receiving additional compensation for his spouse and to inform the RO "right away" if there was any change in his marital status. The Veteran submitted a claim for approval of school attendance for his "child" in September 2009. The RO wrote to the Veteran and asked that he submit a completed VA Form 21-686c in support of his claim. The Veteran completed the form and submitted it to the RO where it was received in November 2009. He listed his spouse as deceased and provided the date of her death in January 2006 and the place. The Veteran's claim for additional compensation for his "child" was denied by the RO in February 2010. The notice of the decision also informed the Veteran that his spouse was removed from his award based on his report of her death. This meant she was removed from his award as of February 1, 2006, and that the adjustment resulted in an overpayment. He would be notified of the exact amount. The March 2010 notice letter informed the Veteran of the amount of the overpayment. The evidence reflects that the Veteran's spouse died in January 2006. He did receive additional compensation for his spouse up until January 31, 2010. The RO has determined that this ensuing overpayment of benefits was due to the failure of the Veteran to report the death of his spouse at an earlier time. The Board notes that the RO has not considered the evidence made available at an earlier time to VA that included information of the death of the Veteran's spouse. This information was included in the VA mental health examination reports from September 2006 and August 2007. Those reports were reviewed as part of rating actions with citation to findings of competency by the examiner. In addition, the Veteran's submission of April 2009 provided information as to the death of his spouse. He provided the date and place of her death. This was not considered in determining the validity of the debt. The Board finds that the RO must consider the evidence related above and make a determination as to whether notice of the death of the Veteran's spouse was received at an earlier time than currently held. If so, the amount of the Veteran's overpayment must be re-calculated. If a determination is made that effective notice was not provided at any earlier date, a full explanation must be provided. Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims folder, with particular reference to the items of evidence set forth above. A determination must be made as to whether any of the evidence constitutes notice of the death of the Veteran's spouse at a date earlier than previously determined. If so, the Veteran's overpayment, if any, must be re-calculated and the Veteran advised of the new amount as well as the basis for determining the amount. 2. If an overpayment is still present, the RO should re-adjudicate the issue on appeal. The Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ MICHAEL MARTIN 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).