Citation Nr: 1326063 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-49 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the Veteran's debt created by overpayment of VA benefits is valid. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from May 1992 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of decisions of the Waco, Texas, regional office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. This includes the representative's Informal Hearing Presentation. There is no other evidence not already in the claims folder or considered by the RO. The Board notes that the issue of whether or not payment of the Veteran's VA benefits should be restored was also raised by the Veteran. A Statement of the Case for this issue was prepared and provided to the Veteran in April 2008. However, the Veteran did not submit a Substantive Appeal for this issue, and it is not before the Board. See 38 C.F.R. § 20.200 (2012). The Veteran was scheduled for a hearing before the Board at the RO in March 2013. He failed to appear, and the Board will proceed with adjudication of his appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that the debt he has been charged with by VA is not valid. He does not dispute that he was imprisoned or that he was not entitled to his pension benefits after the 61st day of incarceration. However, he notes that he contacted VA soon after his incarceration and requested that his payments be suspended in order to avoid creating a debt. Furthermore, he states that any money that was paid did not go to him but to his children and their guardian. He does not believe he should be responsible for any money that VA continued to pay after he requested the payments to end and that he never personally received. The record indicates that the Veteran was incarcerated due to the commission of a felony on April 9, 2005. An August 2005 administrative decision of the RO shows that his pension was then terminated on June 9, 2005. See 38 C.F.R. § 3.666 (2012). There are also indications that he then began to receive service connected benefits at a reduced rate, as noted in a September 2006 letter. See 38 C.F.R. § 3.665 (2012). There is further evidence that at least part of these benefits were provided to his dependent children. In a September 2005 letter from the VA Debt Management Center, the Veteran was told that he had been paid $3,821.20 more than he was entitled to receive. There is no explanation as to how this total was derived or for what periods of time the Veteran was overpaid. The Veteran was directed to either repay the amount, or in the alternative benefits would be withheld in order to make the repayment. A September 2006 letter from the VA Debt Management Center referenced the September 2005 letter and noted that a repayment plan was not received and that withholding of benefits had not yet begun. Yet, in spite of no apparent repayment from the Veteran, the amount of the debt was now said to be $3,007.60. An April 2008 VA letter informed the Veteran that he received dual benefits from September 1, 2005 to September 1, 2006, and that this may have created an overpayment. The amount of the overpayment was not provided. The Veteran submitted a notice of disagreement with this determination. The Veteran was provided a Statement of the Case in November 2009. This informed the Veteran that his debt was created because he was " overpaid for various periods between June 9, 2005 and the present time...". The amount of the debt was said to be $1,531.60, although there was no explanation as to how this amount was determined. An August 2012 Supplemental Statement of the Case also said that the amount of the debt was $1,531.60 without indicating how this total was derived. Before the Board can address whether or not the debt charged to the Veteran is valid, the correct amount of the debt must be determined, as well as an explanation as to how the amount was reached and for what time periods the payments represented. Accordingly, the case is REMANDED for the following action: 1. Set forth in the record a written paid and due audit of the Veteran's pension account and service connected compensation for the period before, during, and after the reduction due to incarceration. This audit should reflect, on a month-by-month basis, the amounts actually paid to the Veteran, as well as the amounts properly due. If any benefits were withheld from the Veteran in order to recoup an overpayment, this should also be shown on a monthly basis. The current amount of any debt should clearly be stated, as well as the amount of any debt that has already been recovered. A copy of the written audit should be inserted into the claims file and another provided to the Veteran. 2. After the development requested above has been completed to the extent possible, review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative 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 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). _________________________________________________ ERIC S. LEBOFF 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).