Citation Nr: 1323545 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-24 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a waiver of recovery of an overpayment of VA pension benefits in the amount of $33,764, to include the question of whether the overpayment was properly created. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran had active service from February 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision of the Committee on Waivers and Compromises of the Debt Management Center in Fort Snelling, Minnesota, which denied the Veteran's request for a waiver of indebtedness in the amount of $33,764.00. The Veteran testified before the undersigned Veterans Law Judge in April 2011. A copy of the transcript is of record. 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 Board's review of the claims file reveals that further RO action on the claim is warranted. The Veteran's request for waiver of overpayment was denied on the basis that the request was not timely. However, the record reflects that Veteran may not have received timely notice of the overpayment. A letter received by the Austin Financial Center on June 17, 2003 and by the RO on June 20, 2003 reveals that the Veteran contacted the RO to report an address change. The address given by the Veteran was "Woodbine Terrace, Apt 9." For unknown reasons, the letter sent to the Veteran in July 2005, informing him that the VA had received information from the Social Security Administration that he was receiving benefits and that the RO proposed to stop his pension benefit payments effective June 1, 2003, was sent to "Woodline Terrace, Apt. 9 " Although the street number, city, state, and apartment number were listed correctly on this July 2005 letter, the street name, changed by one letter, resulted in a new zip code being attached to the Veteran's address. A subsequent September 2005 letter, which noted that the RO's proposed action of stopping the Veteran's pension benefits was being implemented, was once again sent to this incorrect address. The claims file contains no document submitted by the Veteran bearing this incorrect street name, or identifying it as his address. It is the Veteran's essential contention that he never received these letters, and that this resulted in his failure to submit a request for waiver within the allotted time frame. The record also reflects that the Veteran is not only seeking a waiver of the overpayment amount, he is also challenging the validity of the overpayment. However, the RO has never adjudicated the matter of whether the overpayment was properly created. While the RO noted in the May 2010 Statement of the Case (SOC) that the Veteran had not requested a waiver of the debt within the time limit, it did not make any specific finding with respect to the validity of the overpayment, or otherwise acknowledge the issue. Hence, further action in this regard is warranted. Accordingly, the case is REMANDED for the following actions: 1. After completing any additional notification and/or development deemed warranted, the RO should readjudicate the expanded claim on appeal, to include the matter of whether an overpayment of pension benefits in the amount of $33,764.00, was properly created, in light of all pertinent evidence and legal authority. 2. If the benefit sought on appeal remains denied, the RO must furnish to the Appellant and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Appellant has the right to submit additional evidence and argument on the matter or 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 action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS 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).