Citation Nr: 1324769 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-03 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to waiver of recovery of a $11,965.10 overpayment of Department of Veterans Affairs (VA) compensation benefits, to include the issue of whether the overpayment was properly created. REPRESENTATION Appellant represented by: Joseph Kay, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from January 1984 to May 1984 and from September 1984 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. 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 Veteran contends that the overpayment of $11,519.10 was not validly created. He argues that VA was at fault in the creation of the debt because it did not acknowledge the change in his marital circumstances and did not add a biological child and step-child to his award. He has indicated that he informed his civilian employer, the Department of Defense (DoD), as to his divorce and the addition of several children as dependents and assumed that this information would be forwarded onto VA. While notification to the Veteran's employer would not put VA on notice of the change in dependent status, a review of the record does reveal that in response to a December 1999 letter from the RO, he indicated in January 2000 that he had been married since June 1987 and that he had two dependent children. He also supplied the Social Security number for one of the children. The preliminary issue of the validity of a debt is a threshold determination that must be made in a benefits overpayment debt collection matter. Based on the information above, there may be impact on the amount of overpayment which is currently owed by the Veteran, as well as an impact on the validity of the debt. Furthermore, the RO did not address the status of one of his stepchildren as a dependent, who was 17 when the request for status as a dependent was received. The issues of the validity of the overpayment and waiver of recovery are inextricably intertwined, and that the Board errs in considering one issue when the other issue is unresolved. As it does not appear that the RO has considered the Veteran's contentions regarding the validity of his debt, a remand is necessary for the RO to address this issue along with the request for a waiver of indebtedness. Additionally, in order to resolve the validity of the debt, the claims file must document the calculation as to how the amount of the overpayment was determined. See Narron v. West, 13 Vet. App. 223 (1999). That calculation is not shown in the Veteran's claims file. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran an audit of the benefits he received and the benefits to which he was entitled during the time period relevant to the overpayment. A copy of that audit should be included in the claims file. Address the actual dependent status of I. W. from January 2000 to the present and the dependent status of B. K. from January 2008 to the present. 2. After the development requested above has been completed to the extent possible, readjudicate the issue of entitlement to a waiver of recovery of an overpayment of service-connected benefits in the amount of $11,965.10, to specifically include the preliminary issue of the validity of the debt. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). _________________________________________________ L. HOWELL 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).