Citation Nr: 1330566 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-09 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a waiver of recovery of an overpayment of Department of Veterans Affairs (VA) pension benefits in the amount of $40,140.50, to include the question of whether the overpayment was properly created. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to June 1970 and March 1971 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Committee on Waivers and Compromises (COWAC) at the Milwaukee, Wisconsin RO. The issue of entitlement to service connection for entitlement to service connection for ischemic heart disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is REFFERED to the AOJ for appropriate action. 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 By a letter dated in October 2009, the Veteran was notified that his non-service-connected pension benefits had been terminated effective May 1, 2006, due to failure to return requested information. A letter dated in November 2009 advised the Veteran that he had been overpaid in the amount of $40,140.50. Shortly after notification of the overpayment, the Veteran challenged the validity of the debt and submitted a request for waiver of recovery of the overpayment. See VA Form 21-4138 dated December 10, 2009. In April 1998, the VA Office of General Counsel (GC) issued a Precedent Opinion, which held: When a veteran both challenges the validity of a debt and seeks waiver of the debt, the Regional Office must first fully review the debt's validity and, if the office believes the debt to be valid, prepare a written decision fully justifying the validity of the debt. At that point, the veteran's request for waiver should be referred to the Committee on Waivers and Compromises. If waiver is denied, the veteran must be informed of his or her right to appeal both decisions to the Board of Veterans Appeals. VAOPGCPREC 6-98 (April 24, 1998). In that opinion, attention was drawn to 38 C.F.R. § 1.911(c) , which explicitly permits separate or simultaneous consideration of the issues involving the validity of the debt, and the waiver issue. In this case, the Veteran has indicated that both matters should be pursued. Accordingly, the Veteran's claims should be developed in the sequence set forth in the holding in the GC opinion, quoted above. The United States Court of Appeals for Veterans Claims (Court) has held that, when the validity of a debt is challenged, a threshold determination must be made on that question prior to a decision of waiver of indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430, 434 (1991). See also 38 C.F.R. § 1.911(c) (2012) & VAOPGCPREC 6-98 (Apr. 24, 1998). When a veteran both challenges the validity of the debt and requests waiver, the RO must fully review the file and any material the veteran submits, and make appropriate written findings with regard to the validity of the debt. VAOPGCPREC 6-98. In this regard, the Board notes that the RO did not "prepare a written decision fully justifying the validity of the debt." VA GC's opinions are binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002). Under these circumstances where the Veteran took steps to initiate appeals as to both issues, and where the confusion is the result of procedural errors by VA, the Board believes the most reasonable action at this time is to remand the matter for remedial action to afford the Veteran due process of law. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the Veteran's claim concerning the validity of the reported $40,140.50 debt, completing a full audit for the entire period covered by the overpayments, which fully justifies the amounts charged. Then provide an accounting to the Veteran, explaining the amount of the overpayment and how it was calculated. 2. If it is determined that a debt was properly created, appropriate action should be undertaken to obtain a new financial status report and the Committee on Waivers and Compromises must then readjudicate the waiver claim. 3. If either the validity of the debt claim and/or the waiver claim are denied, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case addressing each issue which remains denied. After the Veteran and his representative are afforded an opportunity to respond, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ BETHANY L. BUCK 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).