Citation Nr: 1330519 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 11-33 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether an overpayment of non-service-connected pension benefits totaling $5,814.00 was properly created. REPRESENTATION Appellant represented by: Richard J. Henkenius, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from June 1963 through June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which effectuated reductions of the Veteran's non-service-connected pension benefits, beginning from August 1, 2009, based upon removal of the Veteran's spouse as a dependent; from September 1, 2011, based upon change in income due to receipt of social security benefits; and from October 1, 2011, also based upon change in income due to receipt of social security benefits. A timely Notice of Disagreement (NOD) was received from the Veteran in June 2011. After a Statement of the Case (SOC) addressing those issues was provided in December 2011, the Veteran perfected his appeal later that month, via VA Form 9 substantive appeal. The Veteran testified during an August 2012 Travel Board hearing that was held at the RO in Lincoln, Nebraska. A transcript of this testimony is associated with the record. In October 2012, VA received a VA Form 21-22a purporting to appoint a private attorney, Richard J. Henkenius, as the Veteran's representative. Mr. Henkenius has been accredited to assist claimants in the preparation, presentation, and prosecution of VA benefits claims. Accordingly, the Board recognizes Mr. Henkenius as the Veteran's representative in this matter. The Board also notes that, although Mr. Henkenius had not yet attained accreditation at the time of the Veteran's August 2012 hearing, he was present at the Veteran's hearing, sworn as a witness, and permitted to assist the Veteran in the proceedings. Since the Veteran was permitted to provide his testimony with the assistance of his counsel, there is no prejudice that resulted to the Veteran due to any irregularities during the hearing. This matter was remanded by the Board in November 2012 for further development, to include: preparing an audit demonstrating the period and amount of overpayment to the Veteran and providing the audit and an explanatory letter to the Veteran; undertaking any additional development deemed necessary; and readjudicating the issue of whether an overpayment of non-service-connected pension benefits in the amount of $5,814.00 was properly created, and if applicable, the issue of entitlement to a waiver of recovery of overpayment of non-service-connected pension benefits. During the course of subsequent development, the St. Paul RO issued an August 2013 decision which granted a waiver of recovery of overpayment of $5,814.00. Despite the RO's favorable determination, the issues of whether VA was correct to reduce the Veteran's pension benefits due to removal of his spouse as dependent and due to changed income remains certified to the Board and returns for its de novo consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The total overpayment resulting from removal of the Veteran's spouse as a dependent in August 2009 and changes in the Veteran's income due to receipt of social security payments in September and October of 2011 was $5,814.00. 2. An August 2013 decision has found in the Veteran's favor and granted waiver of recovery of overpayments made to the Veteran, totaling $5,814.00. 3. The evidence does not show any other overpayment to the Veteran, nor does it show that VA has recovered any other overpayments. 4. The issue of whether overpayment of non-service-connected pension benefits in the amount of $5,814.00, whether due to removal of the Veteran's spouse as dependent or due to changes in income, is moot. CONCLUSION OF LAW The issue of whether an overpayment of non-service-connected pension benefits in the amount of $5,814.00 was properly created is dismissed. 38 U.S.C.A. §§ 1521, 5112, 7104(a) (West 2002); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the remaining issue on appeal, the Board notes that the United States Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the present case, the facts are not in dispute. As discussed below, resolution of the appellant's appeal of this issue is wholly dependent on interpretation of the relevant VA statutes and regulations. Thus, as no reasonable possibility exists that any further factual development would assist in substantiating the claim, should any deficiencies of VCAA notice or assistance exist, they are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Moreover, because the claim is being denied as a matter of law, no further development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). Through arguments raised during the Veteran's August 2012 hearing and by his representative in letters dated August and October 2012, the Veteran appears to be asserting that VA improperly made overpayments based upon the Veteran's marital status, even after his spouse was removed as a dependent on August 1, 2009. Based upon this assertion, the Veteran estimates that approximately $5,000.00 in non-service-connected pension benefits was withheld from him by VA as part of VA's efforts to recoup these improper overpayments. In sum, he demands that he be reimbursed the amount of pension benefits which were withheld. Subsequently, and in accordance with the Board's November 2012 remand, VA performed an accounting of the Veteran's non-service-connected pension benefits which revealed that overpayments totaling $5,814.00 had been made to the Veteran during the period from August 1, 2009 through February 28, 2011. A report of this accounting, accompanied by an explanatory letter and spreadsheet demonstrating the history of changes made to the Veteran's pension benefits, was provided to the Veteran in August 2013. Based upon this information and the other evidence previously of record, to include the Veteran's testimony and the arguments raised by his representative, VA issued a decision later that month which waived VA's recovery of the entire $5,814.00 overpayment. As noted above, VA's accounting does not reflect any other overpayments to the Veteran; nor does Veteran appear to assert that VA attempted to recoup any other amounts from the Veteran other than the $5,814.00 which has been waived. Indeed, the Board's careful review of the record does not indicate any other discrepancies in the amounts paid or subsequently recovered from the Veteran. Under the circumstances, the remaining question of whether the $5,814.00 overpayment was properly created, whether due to VA's failure to account for removal of the Veteran's spouse as dependent or due to changes in the Veteran's income, is moot in view of the RO's favorable August 2013 determination. ORDER The appeal is dismissed. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs