Citation Nr: 1331443	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  10-31 787A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia



THE ISSUE

Entitlement to waiver of overpayment of VA educational assistance benefits in the amount of $56.07, to include the issue of the validity of the debt.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Lori Wells-Green




INTRODUCTION

The Veteran served on active duty from July 1976 to July 1978.  He died in February 2006, and the Appellant is his surviving daughter.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a determination in July 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) Education Center in Atlanta, Georgia.  

In August 2011, the Appellant appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the Appellant's file.

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  


REMAND

The Appellant challenges the validity of an overpayment of VA educational benefits.

At the time of the Veteran's death, the Appellant was in receipt of VA educational benefits pursuant to Chapter 35 of Title 38 of the United States Code.  In a rating decision in July 2009, the RO granted service connection for the cause of the Veteran's death, which established basic eligibility to Dependents Education Assistance for the Appellant after the Veteran's death. 




In August 2009, the Appellant stated that her VA educational benefits were discontinued from March 2006 until December 2006 after her father died.  She asserted that she was still entitled to educational benefits as a dependent after the Veteran died. 

In November 2009, VA notified the Appellant that she was overpaid because she had been paid at the full time rate, when her credit hours had been reduced to less that fulltime, resulting in the debt.  

In July 2010, the Appellant was awarded monthly education benefits at the full time rate from August to December 2006, and VA was subsequently notified by the school that the Appellant had reduced her workload from 4 to 3 credits.  This caused an adjustment of her education benefits that led to the creation of the overpayment.

The Appellant maintains that she did not receive the monthly educational payments from May to December 2006 

The question of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness.  Schaper v. Derwinski, 1 Vet. App. 430 (1991).  

Currently, there is insufficient evidence to determine the validity of the underlying debt.  







Accordingly, the case is REMANDED for the following action:

1.  Prepare an audit of the Appellant's educational account from May 2006 to December 2006.  The audit must include a month-by-month accounting and the amount properly due and the amount of the actual payment and the method of payment, for example, by check paid directly to the school.  

2.  After the above development, adjudicate the waiver claim.  If the benefit is denied, furnish the Appellant a supplemental statement of the case, including the results of the audit, the method of payment, and evidence that the payment was made or received, and return the case to the Board.  

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).

The 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).


_________________________________________________
George E. Guido Jr.
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).