Citation Nr: 1325931	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-18 258	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to waiver of recovery of overpayment in the amount of $3,000.00, to include whether the indebtedness was properly created.


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel


INTRODUCTION

The Veteran had active service from January 2002 to May 2002 and from August 2004 to October 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied a request for a waiver of an overpayment of $3,000.00.

Additional documents located in the Veteran's Virtual VA folder have been reviewed in conjunction with the present 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

In September 2009, the Veteran was notified that he was entitled to benefits under the Post-9/11 GI Bill.  He then requested and received an advance on those benefits in the amount of $3,000.00.  A subsequent November 2009 letter informed the Veteran that his claim for Post-9/11 GI Bill benefits was denied due to lack of qualifying active duty service, resulting in the $3,000.00 overpayment at issue.

Although the Veteran has clearly requested a waiver of the overpayment in this case, he has also disputed the validity of the debt itself.  In the March 2010 correspondence in which he requested a waiver, he also stated that he was given "misleading information," and that the September 2009 letter from VA, as well as additional courtesy phone calls, led him to believe that he was eligible for the advance of educational benefits he was seeking.

A debt may not be offset from future benefit payments unless VA first makes a determination with respect to the beneficiary's dispute of existence or amount of debt, which is a right that may be exercised separately from a request for waiver or at the same time.  See 38 U.S.C.A. § 5314(b) (West 2002); 38 C.F.R. § 1.911(c)(1) (2012); VAOPGCPREC 6-98.  The propriety and amount of the overpayment at issue, when challenged, are integral to a waiver determination.  See Schaper v. Derwinski, 1 Vet. App. 430, 434, 436-37 (1991).

The April 2011 statement of the case concerning waiver of the overpayment did not notify the Veteran of the laws or regulations pertaining to the validity of the debt, or adjudicate the validity of the debt itself, to include the Veteran's assertions that he was mislead or misinformed regarding his eligibility for the educational benefits he sought.  Since the issue of the validity of the debt has not been formally adjudicated by the RO, the Board may not consider it at this time in the first instance.  Therefore, this case must be remanded for adjudication of the threshold question of whether the debt at issue was properly created, and readjudication of the request for overpayment.

Accordingly, the case is REMANDED for the following action:

1.  Adjudicate the preliminary issue of whether the overpayment of compensation was properly created.  If it is determined that any or all of the overpayment at issue was improperly created, action should be taken to rectify the error.

2.  If an overpayment is found to be valid and properly created, review the record and reconsider the request for a waiver of overpayment.

3.  If the determination is unfavorable with regard to (a) the validity of the debt or (b) the request for waiver of overpayment, issue a Supplemental Statement of the Case (SSOC) to the Veteran addressing all pertinent laws, regulations, and evidence of record.  A reasonable time should be allowed for response.

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).



_________________________________________________
Vito A. Clementi
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).