Citation Nr: 1328215 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 07-13 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to waiver of the recovery of overpayment of VA disability compensation in the amount of $9,587.60, to include the preliminary issue of whether the request for a waiver was timely filed. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) from a June 2005 decision of a Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia, that reduced the Veteran's compensation benefits due to his incarceration for a felony, effective January 19, 2005, creating an overpayment of $9,587.60. In a September 2006 decision, the VA Debt Management Center (DMC) in Fort Snelling, Minnesota, denied the Veteran's request for waiver of recovery of the compensation indebtedness of $9,587.60, on the basis that a timely request for a waiver of overpayment of compensation benefits was not submitted. The Veteran failed to report to a Board hearing scheduled in February 2010. Though he presumably did not appear to his hearing as a result of his incarceration, he did not provide reasons for his absence or request another hearing. Thus, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). The Board remanded the issue on appeal for further evidentiary development in June 2010. In January 2012, the Board denied entitlement to waiver of the recovery of overpayment of VA disability compensation of $9,587.60, on the grounds that the Veteran did not file a timely waiver request. The Veteran subsequently appealed the Board's decision to the United States Court of Appeal for Veterans Claims (Court), and in a March 2013 decision, the Court found that the Board erred in determining that the Veteran failed to timely submit a request for a waiver because the RO did not mail the notification of indebtedness to his prison address of record. Accordingly, the Court set aside the Board's January 2012 decision and remanded the matter to the Board for further proceedings consistent with the Court's decision. The issue of entitlement to a waiver of recovery of an overpayment of VA disability compensation in the amount of $9,587.60 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In June 2005 VA sent a letter to the Veteran that attempted to notify him of an overpayment in the amount of $9,587.60; but the notice was not sent to the Veteran's prison address of record. 2. In a July 2006 letter, the Veteran requested a waiver of at least a portion of his indebtedness. 3. The July 2006 letter was timely because the June 2005 letter was not sent to the Veteran's prison address of record. CONCLUSION OF LAW A request for waiver of recovery of overpayment of VA disability compensation in the amount of $9,587.60 is accepted as having been timely filed by the Veteran. 38 U.S.C.A. § 5302(a) (West 2002); 38 C.F.R. § 1.963(b), 20.305 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations are not applicable to requests for a waiver of overpayment. See Barger v. Principi, 16 Vet. App. 132 (2002). II. Timeliness of Waiver Request In its single judge decision, the Court determined that the Board had erred in determining that the Veteran's request for waiver was untimely. The Court based its finding on the fact that VA had not sent notice of the overpayment to his prison address of record. The Court's decision is the law of the case and binding on the Board. See Browder v. Brown, 5 Vet. App. 268, 270-1 (1993). Accordingly, the Board implements the Court's decision, by holding that the Veteran filed a timely request for waiver of the VA compensation in the amount of $9,587.60. ORDER The Veteran's request for a waiver of recovery of an overpayment of VA disability compensation in the amount of $9,587.60, is timely filed. The appeal is granted to that extent. REMAND Having decided that the Veteran submitted a timely waiver request, the Board finds that the appeal must be returned to the DMC in order for a determination to be made as to whether a waiver of overpayment should be granted on the underlying merits of the Veteran's request. As the Veteran's waiver request was previously denied as untimely received, the issue of entitlement to waiver of recovery of overpayment of VA disability compensation in the amount of $9,587.60, must now be adjudicated on the merits by the Agency of Original Jurisdiction. Further appellate review by the Board with regard to the Veteran's waiver claim must be deferred pending formal adjudication of this issue. Accordingly, the issue is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request an up-to-date financial status report listing all monthly income, monthly expenses, and assets (to include bank account information) from the Veteran. 2. Thereafter, the (AOJ) should adjudicate the request for a waiver of recovery of overpayment of VA disability compensation in the amount of $9,587.60. 3. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case; and return his appeal to the Board, if otherwise in order. 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 matter must be afforded expeditious treatment. The law requires that all matters 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs