Citation Nr: 1330800 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-06 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Education Center in Muskogee, Oklahoma THE ISSUES 1. Entitlement to education assistance benefits. 2. Entitlement to a waiver of recovery of advance payments of educational assistance benefits in the aggregate amount of $4,000.00. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant was a member of the Army National Guard from March 1996 to April 2003, when he was transferred to the Army Reserve; he was released from the Army Reserve in March 2004. The appellant had an initial verified period of active duty for training (ACDUTRA) from September 1996 to April 1997, as well as other unverified periods of ACDUTRA and inactive duty for training (INACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 determinations issued by the Department of Veterans' Affairs (VA) Education Center at the Regional Office (RO) in Atlanta, Georgia that held that the appellant was not entitled to any education benefits, including under the Montgomery GI Bill (MGIB) (Chapter 30); the post-Vietnam Era Veterans' Educational Assistance Program (VEAP or Chapter 32); the MGIB Selected Reserve (MGIB-SR or Chapter 1606); and the Post 9/11 GI Bill. In June 2010, the Debt Management Center (DMC) sent the appellant a demand letter based on a special payment for which he had been determined to not have any entitlement. The demand letter informed the appellant of the amount of his debt ($4,000) and his right to ask for waiver of the debt. In July 2010, the appellant sent a letter to the DMC and stated that he was disputing the claim against him. Review of the evidentiary record suggests that some of the assessed indebtedness in question may have been recouped and that penalties may have been assessed. However, there is no audit in the record indicating the amount of any penalties or repayments. The case was subsequently transferred to the Education Center at the RO in Muskogee, Oklahoma which issued the statement of the Case (SOC) in November 2010. The Columbia, South Carolina RO otherwise has jurisdiction of the claims file. In August 2011, a Travel Board hearing was held at the Columbia, South Carolina RO before the undersigned Veterans Law Judge. The transcript from that hearing is in the claims file. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain evidence pertinent to the claim that is not already included in the paper claims files. The issue of entitlement to a waiver of repayment of a debt in the amount of $4,000.00 for advance payments of educational assistance benefits has been raised by the record (a July 2010 letter to the DMC), but that matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, the appellant expressed disagreement with the VA's denial of educational benefits and the debt incurred as a result of his requesting the $4,000 advance payments; he argued that the VA had incorrectly handled his claim for education benefits and that he was entitled to benefits based on his service of more than six years in the National Guard. The Board finds that this is a claim for waiver of the overpayment due to VA administrative error, submitted within the 180 day requirement. See 38 C.F.R. §§ 1.962, 1.963, 1.965. This issue of entitlement to a waiver of the $4,000 advance payment has not been considered by the RO Committee on Waivers and Compromises (COWC) in the first instance. Thus, there is no AOJ decision on whether the debt resulting from the $4,000 advance payment should be waived. See 38 C.F.R. § 1.962. Therefore, the Board does not have jurisdiction over this issue, and the waiver request is referred 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 On September 25, 2009, the Secretary announced that VA had authorized emergency checks for up to $3,000.00 to be given to students who had applied for educational benefits and who had not yet received their government payment. It was noted that students should be focusing on their studies, not worrying about financial difficulties. Delays in educational assistance payments were in part due to the overwhelming popularity of the Post-9/11 GI Bill resulting in tens of thousands of claimants. Significantly, the announcement made clear that the advanced money would be deducted from future education payments. The appellant applied online for a $1,000 advance payment in November 2009. When he did not receive any communication about that request for education benefits, he went to the RO in Columbia, South Carolina to ascertain the status of his claim. On that day, November 24, 2009, he received a check for a $3,000.00 advance payment after he was informed that he was entitled to education benefits. On November 27, 2009, a check for an advance payment was issued to the appellant in the amount of $1,000. As previously noted, in January 2010, the Education Center determined that the appellant was not entitled to any educational assistance benefits. Thereafter, in June 2010, the Debt Management Center established the debt for the advance payment and notified the Veteran that it was necessary to recoup the $4,000.00. The appellant has consistently maintained that the overpayment in the amount of $4,000 was the result of administrative error on the part of the VA and is not warranted. Furthermore, he has also maintained that he is entitled to educational benefits based on his more than six years of service in the National Guard. However, it appears that the Education Center only addressed the issue of validity of the waiver of the debt and did not consider the appellant's disagreement with the January 2010 denial of eligibility for educational assistance benefits. The appellant's arguments with regard to his entitlement to educational assistance benefits underpin his disagreement with the validity of the debt. If he were to be found to be entitled to educational assistance benefits, this would affect the matter of whether any overpayment was actually created. Moreover, the appellant has asked for an accounting of the assessed overpayment. Based on the foregoing, the issue of whether an overpayment of educational assistance benefits was properly created is inextricably intertwined with the Board's decision to remand the issue of entitlement to educational assistance benefits. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). It is therefore appropriate to defer consideration of the overpayment claim until the development requested is complete. Accordingly, a decision on the validity of the overpayment issue is deferred pending completion of the actions requested below. In a written statement received at the Muskogee Education Center in November 2010, the appellant expressed disagreement with the January 2010 determination by the Education Center that he was not entitled to any educational assistance benefits. (This was a copy of the July 2010 letter he sent to the DMC disputing the debt.) This letter serves as a timely notice of disagreement (NOD). However, no statement of the case (SOC) is of record as to the issue of eligibility for educational assistance benefits. Where an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Because the originating agency did not subsequently issue an SOC addressing the issue of entitlement to educational assistance benefits, the Board must remand that issue for the issuance of an SOC. Id. On remand, therefore, the appellant must be provided an SOC that addresses the issue of entitlement to educational assistance benefits. The appellant must be notified of the time limit within which a substantive appeal must be filed in order to perfect an appeal on that issue to secure appellate review by this Board. Accordingly, this case is REMANDED to the AOJ or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Examine the appellant's claim of entitlement to educational assistance benefits. If no additional notice or development is required, prepare an SOC in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought, or by the appellant's withdrawal of the NOD. 2. If, and only if, the appellant files a timely substantive appeal, should the issue of entitlement to educational assistance benefits issue be returned to the Board for appellate review. 3. Upon the completion of adjudication of the appellant's pending appeal as to his claim of entitlement to educational assistance benefits, and following completion of the any indicated development, including the provision of any required notice, determine whether the appellant's education benefits overpayment debt was properly created and, if so, whether the amount of such debt was correctly calculated. Address the issue of administrative error and set forth in detail the bases for the calculation of the amount of the debt. 4. If the decision of the Education Center remains adverse to the appellant, then he and his representative, if any, must be furnished an appropriate supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the validity of the debt claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time for response must be allowed. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case must be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).