Citation Nr: 1502680 Decision Date: 01/20/15 Archive Date: 01/27/15 DOCKET NO. 12-26 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs nonservice-connected pension benefits in the amount of $18,001.64. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1974 to April 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from an adverse determination in June 2012 of a Committee on Waivers and Compromises of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The claims file was subsequently transferred to the Philadelphia, Pennsylvania RO and then the Roanoke, Virginia RO, which is currently handling the appeal. In September 2012, the Veteran requested a Travel Board hearing. He failed (without providing cause) to report for such hearing scheduled in March 2013, and the hearing request is deemed withdrawn. In VA a Form 8, Certification of Appeal, dated in November 2012, the RO indicated that the Veteran had three debts: $18,001.64 due to Social Security, $8,772 due to a 2006 IVM (Income Verification Match), and $34,135.37 due to a 2004 IVM. The current appeal concerns only the first of the foregoing debts charged against the Veteran's account. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks a waiver of recovery of nonservice-connected pension benefits of $18,001.64. The Committee on Waivers in June 2012 did not consider the merits of the claim because it determined that the waiver request was not timely received (i.e., within 180 days following the date of a notice of indebtedness issued by the VA to the debtor). Indeed, the evidence of record suggests that the Veteran's waiver request was untimely, given that he was issued a notice of indebtedness by VA's Debt Management Center in June 2007 and his waiver request was purportedly received on May 17, 2012 (according to the Committee on Waivers in June 2012 and the statement of the case (SOC) issued in September 2012). However, the Veteran's waiver request of May 2012 does not appear to be of record (although there is a copy of a letter dated June 14, 2012, wherein the Veteran requests reconsideration of his "situation or case as it may be"). The RO should obtain the document designated as the Veteran's waiver request. Moreover, while the Veteran has not explicitly disputed the amount of the overpayment assessed against his account, a threshold issue in this case is whether the debt of $18,001.64 is a valid one. Notably, the matter of the validity of the overpayment must be addressed before a claim for waiver of an overpayment may be adjudicated. Schaper v. Derwinski, 1 Vet. App. 430, 434-35 (1991) (where the United States Court of Appeals for Veterans Claims (Court) held that it is improper to adjudicate an application for waiver without first determining the lawfulness of the debt asserted). As the record now stands, there appears to be some basis for finding that the debt is not correct, as will be explained. In a May 2007 letter, the Philadelphia RO notified the Veteran that his pension benefits were retroactively reduced, effective January 1, 2002, on the basis that his wife was in receipt of Social Security benefits that were not previously reported. As previously noted in a December 2006 letter to the Veteran, such spousal income was considered family income and thus countable for purposes of calculating his pension entitlement. Thereafter, in June 2007,VA's Debt Management Center sent the Veteran a notice of indebtedness in the amount of $18,001.64. What the RO did not appear to take into consideration in reducing the Veteran's pension benefits are the following facts. In a statement dated in December 2006, the Veteran asserted that he was unaware of the amount of money his wife received as they had been separated for 15 years (in a July 2012 Financial status report, he noted that they had been separated for 20 years and he had no information concerning her income). He also indicated that she refused to give him any information concerning her income and that the Social Security Administration also would not divulge any information concerning her income. On Improved Pension Eligibility Verification Reports, received in January 1998 and January 2012, the Veteran indicated that he was married but not living with his wife. His pension award has included a dependency allowance for his spouse and children, and it appears that he has contributed to the support of his wife and children through an apportionment of his pension award, which was granted in a Special Apportionment Decision in May 1997 in the amount of $564. (In January 2005, the Veteran's wife requested an increase in the amount of apportionment.) As shown by the foregoing, despite the fact that the Veteran is married, he has been living apart from his wife for a prolonged period of time and does not benefit in any conceivable way from the income his wife receives. In other words, his wife's separate income from Social Security, of which the Veteran was unaware but which was nevertheless considered family income for purposes of calculating his pension benefits, was never reasonably available to or for the Veteran. Given these circumstances, the RO should address whether the creation of the $18,001.64 debt is valid. (To the extent that the other two overpayments currently assessed against the Veteran's pension account - which are not on appeal - have arisen from similar circumstances, it is suggested that the RO should likewise consider the validity of those debts.) Accordingly, the case is REMANDED for the following action: 1. The AOJ should seek from the Debt Management Center the Veteran's request for waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $18,001.64, which was reportedly received on May 17, 2012 (according to the Committee on Waivers in June 2012 and the SOC issued in September 2012). 2. The AOJ should adjudicate the threshold issue of whether the $18,001.64 overpayment of pension benefits is valid, given the circumstances described in the paragraphs above, to include the fact that although the Veteran is married, he has been living apart from his wife for the entire period of the overpayment and does not benefit in any conceivable way from the separate Social Security income that she receives, of which the Veteran was unaware but which was nevertheless considered family income for purposes of calculating his pension benefits. The AOJ should cite to the pertinent laws and regulations that support its determination on the validity of the debt. 3. After the above development is completed, the AOJ should review the claims file and readjudicate the claim for waiver of recovery of an overpayment of nonservice-connected pension benefits in the amount of $18,001.64, explaining with clarity the basis for the decision. If the benefit sought remains denied, furnish the Veteran and his representative an appropriate supplemental SOC and return the case to the Board. The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2014).