Citation Nr: 1325452 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 04-16 697A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether an overpayment of VA educational assistance benefits in the calculated amount of $8,427.70 was properly created. REPRESENTATION Appellant represented by: Donald C. Hill, Attorney ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Muskogee, Oklahoma, which found that an overpayment had been created for the Veteran in the calculated amount of $8,427.70. The Veteran appealed the validity of this debt and requested a waiver. In August 2004, the Committee on Waivers and Compromises (Committee) of the Muskogee RO denied the Veteran's request for a waiver of this debt. The Committee determined that the Veteran had acted in bad faith in the creation of this debt, which precluded consideration of a waiver of recovery of his debt. Neither the Veteran nor his attorney subsequently expressed disagreement regarding the denial of a waiver. Instead, the Veteran's attorney continued to argue that the debt was not valid. Therefore, the only issue properly before the Board is the validity of the debt. This appeal was previously remanded in September 2006 for the purpose of fulfilling the Veteran's request for a personal hearing before a member of the Board. Such hearing was eventually scheduled for July 2009; in June 2009, the Veteran's attorney indicated that the Veteran no longer desired a hearing. See E-mail from Veteran's Attorney to Manila RO Personnel dated June 17, 2009. The Veteran's request for a hearing before a member of the Board is now considered withdrawn. See 38 C.F.R. § 20.702(e) (2012). This appeal was again before the Board in May 2010 when it was remanded for additional development. Thereafter, in February 2011 the Board found that the overpayment was properly created and denied the Veteran's appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 memorandum decision, the Court vacated the Board's decision and remanded the case for further consideration consistent with the findings of the memorandum decision. The Veteran's representative, in a statement dated in May 2013 alleges clear and unmistakable error (CUE) in the Board's prior decision. However, as this decision was vacated by the Court there can be no CUE. The Veteran's representative, in a statement dated in May 2013 makes allegations that the VA committed CUE in the development of the case and preparation of a Statement of the Case. However, as the Veteran's representative has not alleged CUE in the outcome of a prior final decision, the Board declines to refer a claim of CUE. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The overpayment at issue in the present appeal, $8,427.70, was created as a result of alleged participation in a fraud scheme at Ramon Magsaysay Technological University (RMTU) in the Philippines. Following two VA Education Compliance Surveys, a field investigation by VA Educational Compliance Survey Specialists (ECSSs), and an investigation by VA's Office of Inspector General (OIG), the VA concluded that sixty Veterans, including the one that is the subject of this appeal, were not regularly attending classes, but were instead receiving course credit in return for buying supplies and other "gifts" for the school and for individual instructors. As set forth in the February 2011 Board decision, the current record contains summaries of the Education Compliance Surveys conducted in October 2002 and February 2003. The record also contains a February 2004 memorandum report from OIG explaining the situation at RMTU, statements from various RMTU instructors and students, and a joint statement by the Veteran's. The Board found that the overpayment of education benefits to the Veteran was properly calculated based upon review of the documentation from the aforementioned sources outlining the general participation of the veteran student body at RMTU in a scheme to collect education benefits without attending class, of which the Veteran in this case was determined to have been a member. Particular attention was given to the credible testimony of RMTU faculty and non-veteran students as to the lack of academic participation of the identified student members. The Court has since held in its September 2012 Memorandum Decision that the Board did not provide an adequate statement of reasons and bases to support its finding that the Veteran took part in a scheme to defraud VA, holding that the Board did not base its conclusion of fraudulent practices upon evidence specific to the Veteran and did not meaningfully weigh evidence suggesting that the Veteran was not part of the alleged scheme. The VA Education Compliance Surveys and OIG report are clearly of probative value in the Board's adjudication. There is not, however, substantial evidence specific to the Veteran that will permit a full and complete evaluation of the propriety of the creation of the overpayment. Additionally, records relevant to the RO determination of the overpayment are not currently associated with the claims file. The depositions of record indicate that signed Attendance Sheets were submitted for review; however, review of the claims file does not reveal these signed attendance sheets. The Board thus finds that a remand is necessary to obtain additional information and evidence associated with the above-referenced educational surveys and investigations that might contain information specific to the Veteran. Accordingly, the case is REMANDED for the following action: 1. Make reasonable efforts to obtain any additional information and evidence associated with the October 2002 and February 2003 VA Educational Compliance Surveys and May 2003 field investigation, including any information that pertains specifically to the Veteran such as interviews, RMTU records, etc. Attempts must be made to obtain the Attendance Sheets identified in the depositions associated with the claims file. Any efforts to obtain these records, including any responses (negative or positive), should be included in the claims file, and requests should continue until it is determined that such records are unavailable or that further requests would be futile. 2. Make reasonable efforts to obtain any additional information and evidence associated with the VA's OIG investigation, as summarized in a February 2004 report, including any information that pertains specifically to the Veteran such as interviews, RMTU records, etc. Any efforts to obtain these records, including any responses (negative or positive), should be included in the claims file, and requests should continue until it is determined that such records are unavailable or that further requests would be futile. 3. If no further pertinent evidence is available or can be obtained, that fact must be documented in the record with a complete explanation of the efforts made to obtain the evidence. 4. Also, obtain a written statement from the OIG special agent author of the February 2004 memorandum (or another appropriate individual if that special agent is no longer available). The statement should address the specific discrepancies, behaviors, and/or other factors considered in making the determination that this Veteran was involved in a scheme to defraud the government. 5. Thereafter, the AOJ should review the claims file to ensure that the foregoing requested development has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completion of the above, and any other development deemed necessary, review the expanded record, to include evidence submitted since the February 2011 Board decision, and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. 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). _________________________________________________ MILO H. HAWLEY 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).