Citation Nr: 1341049 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 13-03 183A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to waiver of the recovery of Post 9/11 GI Bill (Chapter 33) benefits in the amount of $1,719.30, to include the validity of the debt. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from November 2006 to August 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2012 decision of the Committee on Waivers and Compromises. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A determination has been made that additional evidentiary development is necessary. Accordingly, further appellate consideration will be deferred and this case remanded for action as described below. The record compiled for appellate review of this matter to this point is woefully incomplete. The following items have not been associated with the paper claims file and/or virtual record: VA Form 22-1999, Enrollment certification from KD Studio; VA Form 22-1999b, Notice of Change in Student Status from KD Studio; correspondence from the Veteran, to include his request for a waiver of his housing allowance debt in the amount of $1,719.30; the April 2012 decision of the Committee on Waivers and Compromises; the Veteran's notice of disagreement (NOD); the complete copy of the statement of the case (SOC); the Veteran's vocational rehabilitation file; the Veteran's education folder (including records from KD Studio and Mediatech); and the Veteran's complete financial statement reports. Such records must be obtained upon Remand. 38 C.F.R. § 3.159. In the Veteran's VA Form 9, Appeal to Board, the Veteran claimed that KD Studio forged his name and applied for grants and loans in his name. In the instant case, it appears the Veteran is disputing the debt and clearly has asked that the repayment of the debt be waived. Because the Veteran has challenged the proper creation of the debt, further appellate review by the Board with regard to the Veteran's waiver claim must be deferred pending formal adjudication of his challenge to the validity of the debt. Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991) ("when a veteran raises the validity of the debt as part of a waiver application . . . it is arbitrary and capricious and an abuse of discretion to adjudicate the waiver application without first deciding the veteran's challenge to the lawfulness of the debt asserted against him or her"); VAOPGCPREC 6-98 (July 24, 1998) (holding that when a veteran challenges the validity of the debt and seeks waiver of the debt, the [RO] 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 before referring the waiver request to the Committee on Waivers and Compromises). A debtor may dispute the amount or existence of a debt, which is a right that may be exercised separately from a request for waiver or at the same time. 38 C.F.R. § 1.911(c)(1). Resolution of the creation issue should precede consideration of the waiver issue. As a final matter, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Barger v. Principi, 16 Vet. App. 132 (2002), that the Veterans Claims Assistance Act (VCAA), with its expanded duties, was not applicable to waiver issues, pointing out that the statute at issue in such cases (Chapter 53) was not found in Title 38, United States Code, Chapter 51 (i.e. the laws changed by VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. However, the Court has not indicated if VCAA applies to creation issues. Thus, a VCAA letter should be issued as to the creation issue. The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. 38 U.S.C.A. § 5103A (b) (West 2002). The RO should also give the Veteran an opportunity to appoint a representative in the appealed matter. Accordingly, the case is REMANDED for the following action: 1. The RO should review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA with regard to the creation issue only. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 2. The RO should associate the following with the appellate record: VA Form 22-1999, Enrollment certification from KD Studio; VA Form 22-1999b, Notice of Change in Student Status from KD Studio; correspondence from the Veteran, to include his request for a waiver of his housing allowance debt in the amount of $1,719.30; the April 2012 decision of the Committee on Waivers and Compromises; the Veteran's NOD; the complete copy of the SOC; the Veteran's vocational rehabilitation file; the Veteran's education folder (including records from KD Studio and Mediatech); and the Veteran's complete financial statement reports. All requests for records must be clearly documented. 3. Once all the development above has been completed, the issue of validity of the creation of the overpayment of Post 9/11 GI Bill (Chapter 33) benefits in the amount of $1,719.30, should be adjudicated by the Muskogee RO. The Veteran must be provided the proper notice of any such determination and afforded the necessary time to respond. 4. Thereafter, if necessary, the issue of waiver of recovery of the overpayment should be readjudicated. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. The Veteran should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ MILO H. HAWLEY 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).