Citation Nr: 1601628 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 14-01 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) death pension benefits in the amount of $27,456.00. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1970. The Veteran died in October 2006. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2013 decision of the Committee on Waivers and Compromises of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. That decision denied the appellant's request for waiver of recovery of an overpayment of death benefits in the amount of $27,456.00, which was created due to a determination that the death pension benefits received by the appellant beginning in November 2006 were payments to which she was not entitled due to her having income in excess of the disqualifying threshold throughout that period. The appellant testified at a Board videoconference hearing before the undersigned in September 2015. A transcript of the hearing is of record. During the September 2015 Board hearing and in correspondence, the appellant has raised arguments disputing the validity of the creation and calculated amount of the debt at issue, in addition to requesting waiver of that debt. The question of the validity of the creation and calculated amount of the debt at issue is distinct from the question of entitlement to a waiver of recovery of such a debt. Before a decision can be made on whether the appellant is entitled to a waiver of recovery of the overpayment, it must be determined whether or not the determination of the existence of the overpayment was legally valid. See Schaper v. Derwinski, 1 Vet. App. 430 (1991) (where the Court held that it is improper ("arbitrary and capricious and an abuse of discretion") to adjudicate an application for waiver without first determining the lawfulness of the debt asserted). In Schaper, the Court essentially held that appellate review of a waiver application cannot properly proceed before initial adjudication has addressed any challenge to the legal validity of the creation of the debt. Following careful consideration of the matter, the Board finds that the question of the validity of the creation and calculation of the debt has been formally resolved/closed and is not currently within the Board's jurisdiction. As discussed during the September 2015 Board hearing, appellate review is initiated by a notice of disagreement and completed by a substantive appeal filed after an SOC has been furnished to an appellant. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. A substantive appeal must be filed within 60 days from the date of mailing of a statement of the case, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.302(b). The debt at issue was originally created through a September 2010 determination of the Pension Management Center (PMC) in Milwaukee, Wisconsin. (The amount of the debt was presented in an October 2010 letter from the Debt Management Center in St. Paul, Minnesota.) The appellant initiated an appeal of the creation of the debt (challenging the retroactive termination of the pension entitlement) by filing a notice of disagreement (NOD) in November 2010. In October 2011, the PMC issued a statement of the case (SOC) addressing the matter. The October 2011 SOC was sent to the appellant with appropriate instructions regarding the required actions and time limit for perfecting the appeal for review by the Board. No correspondence of record from the appellant that may be construed as a substantive appeal was received by VA within the applicable time limit (60 days following the October 2011 SOC). In the absence of a properly perfected appeal, the RO may close the appeal and the decision becomes final. 38 U.S.C.A. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. The Board observes that the appellant's December 2013 VA Form 9 substantive appeal on the waiver issue included arguments disputing the validity of the debt, and this correspondence was referred to the attention of the PMC. In March 2014, the PMC sent a reply letter to the appellant explaining to her that the question of revising her entitlement (or termination of entitlement) to death pension benefits for the period pertinent to the overpayment was closed (while inviting her to submit any evidence she may wish to be considered to establish an entitlement for a period in 2013-2014). As the period pertinent to the payments that constitute the overpayment debt (for which waiver is sought) pertinent to this appeal is entirely prior to 2013-2014, the PMC's determination establishing the overpayment is a final and closed matter that is not pending and is not before the Board. As discussed during the September 2015 Board hearing, the Board does not have jurisdiction over the question of the validity of the creation and calculation of the debt if that matter has not been properly appealed to the Board. As the Board has determined that the matter of the validity of the debt is not in appellate status before the Board at this time, the Board's consideration in this appeal is necessarily limited to the question of whether the debt must be waived. The Board does not have jurisdiction at this time to make a new determination regarding the validity of the debt, as the validity of the creation and calculation of the debt is subject to a final September 2010 PMC determination that is not in appellate status. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As discussed during the September 2015 Board hearing, a determination on whether the appellant's request for waiver of recovery of the debt may be granted involves a need to review details of the appellant's finances to the extent of determining the severity of hardship that may be imposed by repaying the debt at issue. In accordance with the discussion at the September 2015 Board hearing, the appellant submitted financial information in support of this claim in November 2015, including a VA Form 5655 Financial Status Report concerning her current income and expenses. The submitted VA Form 5655 indicates that the appellant's current expenses significantly exceed her income, suggesting that repayment of the debt may cause hardship. However, the submitted VA Form 5655 was filled out incorrectly and presents information that contradicts other information of record. Notably, during the September 2015 Board hearing, the appellant stated that she does not receive any income from the Social Security Administration (SSA), but that she does receive $392 each month in payments associated with the Veteran's civil service retirement entitlement. However, in her November 2015 written statement to VA, the appellant refers to VA garnishing a portion of her "civil service" payments and further expresses her hope that VA shall not also garnish her "Social Security check" as well. The appellant's November 2015 statement appears to indicate that she currently receives income from SSA in addition to income from the Veteran's civil service retirement entitlement. Yet, the Financial Status Report submitted by the appellant in November 2015 indicates that her combined income from SSA and from the "Civil Service from spouse" totals $373 per month, with a $93 garnishment of the civil service payment separately listed. (The Board also observes that the information reported by the appellant leaves it somewhat unclear how the indicated monthly expenses are currently paid for in that she reports having significantly insufficient monthly income and liquid assets while also reporting no creditors or debt.) In sum, the appellant's hearing testimony indicates that she receives no money from SSA, her November 2015 statement refers to receiving checks from SSA, and the details of her Financial Status Report suggest that the full amount of her receipt of civil service payments and any SSA payments were not included in her accounting of income (as the amount reported as the total from these sources (in Box 16) was less than the monthly amount she reported receiving from civil service payments alone during the September 2015 Board hearing). The confusion from the apparent discrepancies in the relevant facts should be clarified before the Board proceeds with a final determination in this matter. Appellate review of this matter may be greatly aided by obtaining clarification from the appellant and from the SSA. The Board further observes that it appears that the appellant may have been confused by the instructions for completing the VA Form 5655 in this matter, as certain of the boxes with instructions to report the sums or differences between other items have been filled out incorrectly (for instance Boxes 15 and 24A), raising some uncertainty regarding the information presented. The Board also observes that it appears that the appellant did not correctly report her payroll deductions in section 14 such that her report of net take-home pay in Box 15 is difficult to interpret or evaluate. The appellant should be reminded to carefully follow the instructions for correctly completing each box on the form. The appellant should also be reminded that Box 16 on the form requires a reporting of the total income received from all of the indicated sources, specifically including payments from Social Security. To attempt to resolve any confusion and to attempt to ensure that the correct information can be considered upon appellate review of this case, the Board finds that it is appropriate to remand the matter for additional development: to afford the appellant an opportunity to submit the critical financial information with a corrected VA Form 5655, and to request that she provide clarification and explanation of the discrepancies in her statements of record. Accordingly, the case is REMANDED for the following action: 1. The AOJ should take appropriate action to contact the SSA to attempt to obtain confirmation of whether or not the appellant is in receipt of Social Security benefit payments, and the amount of any such benefit payments. 2. The AOJ should request the appellant to submit an updated and corrected financial status report, VA Form 5655. The AOJ should specifically ask the appellant for clarification on the following matters involving apparent discrepancies in her prior statements: a) The appellant's hearing testimony indicates that she receives no money from SSA, but her November 2015 statement refers to receiving checks from SSA, and the details of her Financial Status Report suggest that the full amount of her receipt of civil service payments and any SSA payments were not included in her accounting of income (as the amount reported as the total from these sources in Box 16 was less than the monthly amount she reported receiving from civil service payments alone during the September 2015 Board hearing). The AOJ should ask the appellant to specifically clarify whether she receives money from SSA, and to specify the amount of money she receives from the SSA. b) The information previously reported by the appellant leaves it somewhat unclear how the indicated monthly expenses are currently paid for, in that she has reported having significantly insufficient monthly income and insufficient liquid assets while also reporting no creditors or debt. The AOJ should ask the appellant to clarify the source of money used to pay for her reported monthly expenses that exceed her reported income (to include any funds received from family or friends). c) It appears that the appellant may have been confused by the instructions for completing the VA Form 5655 in this matter, as certain of the boxes with instructions to report the sums or differences between other items have been filled out incorrectly (for instance Boxes 15 and 24A). The Board also observes that it appears that the appellant did not correctly report her payroll deductions in section 14 such that her report of net take-home pay in Box 15 is difficult to interpret or evaluate. The appellant should be reminded to carefully follow the instructions for correctly completing each box on the form. The appellant should also be reminded that Box 16 on the form requires a reporting of the total income received from all of the indicated sources, specifically including payments from Social Security. 3. After completion of the foregoing, the AOJ should adjudicate the claim of whether the appellant is entitled to a waiver of recovery of an overpayment of VA death benefits in the amount of $27,456.00, either in whole or in part, based on a review of the entire evidentiary record. If the decision remains adverse to the appellant, the AOJ should provide her and her representative with a supplemental statement of the case (SSOC) as to the waiver issue, outlining all applicable facts and governing legal authority, and return the case to the Board. 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 2014). _________________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).