Citation Nr: 1417167 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 11-19 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether the debt created due to an overpayment of pension benefits from January 1, 2007 to March 3, 2008 in the amount of $11,875.20 was valid. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from February 1969 to June 1970. This matter comes before the Board of Veterans' Appeals ' (Board) on appeal from an April 2009 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In February 2010, the Veteran testified at a personal hearing before a Decision Review Officer at the RO. In March 2014, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. Both transcripts of the hearings are of record. The Veteran filed a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) in March 2013, but it does not appear that this issue has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board finally notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. Virtual VA includes numerous documents relevant to the issue on appeal, including a March 2008 Improved Pension Eligibility Verification Report (EVR), March 2008 letters to the Veteran indicating that pension payments were proposed to be stopped, and the April 2009 determination on appeal. At this time, the Veteran's VBMS file does not contain any documents at this time. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). By way of background, the Veteran was awarded nonservice-connected pension benefits in December 2001 and was paid as a single veteran with no dependents. However, in November 2003, the Veteran submitted a declaration of status of dependents indicating that his dependents included a spouse and seven children along with copies of birth certificates. However, in August 2004, only his spouse and one child were added to his dependents. In a March 17 2008 letter, the RO notified the Veteran that his VA pension payments had been suspended based on an Eligibility Verification Report (EVR) received that same month. The EVR reported that for 2007 the Veteran received $766.00 in Social Security Administration (SSA) disability benefits and his spouse's wages were $15,000.00. The Veteran had also reported unreimbursed medical expenses in the amount of $1156.00. The RO determined that the Veteran's countable income was $23,772.00, which exceeded the maximum annual pension rate (MAPR) of $16,552.00 for a Veteran with two dependents. However, in a subsequent notice dated a few days later, the RO proposed to stop pension payments effective January 1, 2007 finding the Veteran's countable income was $23,587.00, which exceeded the MAPR for 2007 of $16,179.00. The Veteran subsequently submitted information concerning three additional dependents that had not been considered by the RO. In a subsequent April 2009 determination on appeal, the RO terminated the Veteran's pension benefits, effective January 1, 2007. The RO determined that the Veteran's countable income for 2007 was $23,680.00 based on the Veteran's income of $8,994.00 and his spouses income of $15,000 minus medical expenses of $1,122.00 with represented the amount paid for Medicare premiums. As the MAPR was $16,179.00 for a veteran with two dependents, the Veteran's income exceeded this amount. The RO also indicated that even if it consider the three additional dependents, the Veteran income of $23,680.00 still exceeded the MAPR of $15,542.00 for a veteran with four dependents. However, it appears that the actual MAPR for 2007 for a veteran with four dependents is $21,777.00. The record appears to be very unclear concerning the actual amount of countable income received by the Veteran as well as the number of dependents. In its three notices to the Veteran, the RO has provided three different countable incomes. Further, the RO indicated that it could not add the Veteran's dependents to his award because they were not aware of them until March 2008, which appears to be inaccurate as indicated above, the Veteran provided this dependent information in November 2003. Moreover, at the RO hearing, the Veteran indicated that he had additional unreimbursed medical expenses for the year 2007. It is also important to note that no income or medical expense information has been submitted for subsequent years that may show that the Veteran's pension should be reinstated. As such, the Board believes that additional development is necessary before the Board may proceed with further appellate review. Moreover, in the instant case, it is unclear whether some of the assessed indebtedness in question may have been recouped. Nevertheless, in accordance with Franklin v. Brown, 5 Vet. App. 190 (1993), the Board must consider the entire amount calculated. Importantly, there is no accurate accounting in the record showing how the debt was calculated or indicating the amount of any repayments for the period in question. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. A written paid and due audit of the Veteran's account for the period of the overpayment should be performed. This audit should reflect how the initial debt was calculated as well as, on a month-by-month basis, the amounts actually paid to the Veteran, as well as the amounts properly due. In addition, the audit should include the amount of the overpayment, if any, that may have been repaid by the Veteran. A copy of the written audit should be inserted into the claims file and another provided to the Veteran and his representative. 2. Supply the Veteran with a new income eligibility verification form (VA Form 21-0516-1) in order to obtain accurate information as to his current net worth and income for the years 2007 to the present. Ask the Veteran to provide current information of any exclusion from income, such as unreimbursed medical expenses, and such information should be reported on a Medical Expense Report (VA Form 21-8416). The Veteran and his representative are advised that failure to provide the requested information may well result in a denial of the claim on appeal. 3. After completion of the above development, as well as any other action deemed necessary, the AOJ should review the evidence and reajudicate the issue on appeal. If determination remains unfavorable to the Veteran, both he and his representative should be furnished an a supplemental statement of the case, which specifically addresses the issue of creation of the overpayment and which contains a recitation of the pertinent law and regulations governing the issue of proper creation, including 38 U.S.C.A. § 5112 ; 38 C.F.R. § 1.965(a). This document should further reflect detailed reasons and bases for the decision reached. The Veteran and his representative should be afforded the opportunity to respond thereto; thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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. 2013). _________________________________________________ MARJORIE A. AUER 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) (2013).