Citation Nr: 1317331
Decision Date: 05/28/13	Archive Date: 06/28/13

DOCKET NO.  12-32 727	DATE MAY 28 2013

On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania

THE ISSUES

1. Entitlement to an apportionment of the Veteran's disability compensation benefits on behalf of his wife and three children.

2. Entitlement to a waiver of the recovery of an overpayment of compensation benefits in the amount of $4,212.57, to include whether the waiver request was timely received.

REPRESENTATION 

Appellant represented by:   Disabled American Veterans

ATTORNEY FOR THE BOARD 

Patricia Veresink, Associate Counsel
                           
INTRODUCTION

The Veteran served on active duty from June 1984 to June 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 denial of apportionment of benefits and an August 2012 decision by the Committee on Waivers and Compromises (Committee) at the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In that decision, the Committee denied the Veteran's request for a waiver of the recovery of indebtedness in the amount of $4,212.57.

The RO in Philadelphia, Pennsylvania currently has jurisdiction over the Veteran's appeal.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.

REMAND

The overpayment at issue apparently arises from a retroactive reduction in benefits that occurred as a consequence of the Veteran's incarceration between September 2010 and July 2011. Evidently to avoid that reduction, in April 2011, the Veteran attempted to apportion his benefits to his dependents. However, in May 2011, apportionment was not found to be warranted. The Veteran submitted a statement in June 2011 requesting reconsideration of denial of apportionment. He noted his wife's income and desired the apportionment be directed to his wife and three children. The Board finds this to be a sufficient and timely notice of disagreement. A statement of the case was never issued regarding this matter,   The Board must remand the claim for the RO to issue a Statement of the Case and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely Substantive Appeal. Manlincon v. West, 12 Vet. App. 238 (1999).

The waiver of recovery of the overpayment is inextricably intertwined with the appeal for apportionment of the Veteran's benefits, since it would appear that if the apportionment appeal was successful, there would be a corresponding reduction in the calculated amount of the overpayment. Therefore, any decision on the waiver question would be premature at this point.

Accordingly, the case is REMANDED for the following action:

1. The RO should issue the Veteran a Statement of the Case addressing the issue of entitlement to an apportionment of the Veteran's disability compensation benefits on behalf of his wife and three children. The Veteran should be clearly advised of the time in which he has to file a Substantive Appeal if he wants to continue an appeal with respect to this matter.

2. After completion of the above and any other development the RO deems necessary, the RO should review the expanded record and determine if a waiver of recovery of any remaining overpayment is warranted. If that claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case regarding the overpayment and return the case to the Board, after affording the Veteran and his representative an opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the 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

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action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).

MICHAEL E. KILCOYNE 
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).

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