Citation Nr: 1645548 Decision Date: 12/05/16 Archive Date: 12/19/16 DOCKET NO. 14-13 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether the Veteran's August 21, 2008 communication constituted a valid Notice of Disagreement with the decision to terminate the Veteran's pension benefits effective November 13, 2003. 2. Whether a debt to the government in the amount of $45,274.34 is valid, to include determination of the Veteran's status as a "fugitive felon" pursuant to 38 U.S.C.A. § 5313B (West 2014) during the period of November 13, 2003 to February 15, 2008, and if so, whether the Veteran is entitled to a waiver of recovery for overpayment of pension benefits. REPRESENTATION Veteran represented by: Daniel Nagin, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of this matter was transferred to the RO in Boston, Massachusetts. This matter was previously before the Board in April 2016, when it was remanded for the purpose of scheduling the Veteran for a hearing before the Board. The Veteran presented sworn testimony at a hearing before the undersigned in August 2016. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of the propriety of the termination of the Veteran's pension benefits, to include a determination of the Veteran's status as a fugitive felon for the period November 13, 2003 through February 15, 2008, the validity of the debt to the government in the amount of $45,274.39 and entitlement to a waiver of overpayment are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 2008 decision, the RO terminated the Veteran's pension benefits effective November 13, 2003, finding that he was a fugitive felon pursuant to 38 U.S.C.A. § 5313B. 2. On August 21, 2008, within one year of the August 2008 decision, VA received from the Veteran: (a) a written statement requesting reinstatement of his pension benefits and (b) documentation purporting to show that the criminal case against him had been dismissed. 3. The August 21, 2008, written statement and documentation received from the Veteran indicated disagreement with the August 2008 decision to terminate his pension benefits effective November 13, 2003 based on his status as a fugitive felon, and a desire for review of that decision. CONCLUSION OF LAW The August 21, 2008 written statement of the Veteran was a timely filed Notice of Disagreement. 38 U.S.C.A. § 7105 (West 2008); 38 C.F.R. §§ 19.26, 19.28, 20.200, 20.201, 20.302 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION At issue in this case is whether the Veteran's written communication received by VA on August 21, 2008 constitutes a timely filed Notice of Disagreement (NOD) with the RO's August 2008 decision terminating his pension benefits effective November 13, 2003, resulting in an overpayment of benefits in the amount of $45,274.34. The Board finds that the Veteran's August 21, 2008 written statement was a timely submitted NOD because it was a written communication from the Veteran indicating disagreement with the August 2008 decision and a desire for review. Background A brief review of the procedural history of the appeal is in order. In October 2007, VA received notification that the Veteran had an outstanding warrant for his arrest. In December 2007, VA notified the Veteran that his pension benefits would be terminated retroactively, effective November 13, 2003, due to his status as a fugitive felon pursuant to 38 U.S.C.A. § 5313B. After receiving no response, VA notified the Veteran in August 2008 that his benefits had been terminated effective November 13, 2003. On August 21, 2008, VA received a written statement from the Veteran stating that the criminal case against him had been dismissed and requesting that his benefits be reinstated. With this written statement, the Veteran submitted documents showing that the criminal case against him had been dismissed, and the November 2003 warrant had been recalled. In response to the August 21, 2008 statement, the RO sent to the Veteran a notice with regard to a "reopened" pension claim, stating that the evidence provided did not indicate that his warrant had been cleared and asking the Veteran to submit "official documentation" showing that the warrant had been recalled. See September 2008 Notice Letter. The RO did not consider the Veteran's written statement as an NOD with the August 2008 decision terminating his pension benefits effective November 13, 2003. A Statement of the Case (SOC) was never issued addressing the propriety of the August 2008 decision to terminate the Veteran's pension benefits or with regard to the Veteran's status as a fugitive felon. In December 2008, VA notified the Veteran that his pension benefits had been reinstated effective February 15, 2008, finding that the warrant had been cleared effective that date. In August 2008, the Debt Management Center issued a first demand letter to the Veteran, stating that the overpayment of pension benefits for the period beginning November 13, 2003 had caused a debt in favor of the government in the amount of $49,464.20. See August 2008 Demand Letter. This amount was later corrected to $45,274.34 in light of the Veteran's pension benefits being reinstated effective February 13, 2008. See August 2009 Notice Letter. In response, the Veteran submitted a request for waiver of overpayment in February 2009. The waiver request was denied in an August 2009 decision from the Committee on Waivers and Compromises (COWC). The Veteran submitted an NOD to the waiver denial in September 2009, and an SOC was issued in December 2009. The Veteran did not thereafter perfect his appeal. See September 2012 Notice Letter. In June 2013, VA received a letter from the Veteran's representative, arguing that the August 21, 2008 correspondence constituted a valid NOD and requesting that VA "issue a Statement of the Case addressing the determination that [the Veteran] was a fugitive felon." In June 2013, the RO decided that the written statement received on August 21, 2008 is not a NOD because the Veteran requested a reinstatement of benefits, which was considered a reopened claim, not a request for an appeal. The Veteran submitted a timely NOD with this determination in July 2013, and the RO issued an SOC in November 2013 on the issue of whether the August 21, 2008 written statement was an NOD. The Veteran perfected his appeal in a timely manner, and this issue is now before the Board. Legal Analysis The Board finds that the Veteran's August 21, 2008 written statement was a timely submitted NOD. During the relevant time period, a "notice of disagreement" was defined as a written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination of an AOJ and a desire to contest the result. 38 C.F.R. § 20.201 (2008). While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. Id; Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed.Cir. 2002). In determining whether a written communication constitutes an NOD as to a particular issue, both the actual wording of the communication and the context in which it was written must be considered. Jarvis v. West, 12 Vet. App. 559, 561 (1999)(holding that based on the actual text of the claimant's NOD and expressing intent to appeal effective date only, NOD did not extend appeal to the issue of disability rating). Within this framework, the U.S. Court of Appeals for Veteran's Claims (the Court) has liberally interpreted the statement by an appellant that he "wonder[ed] why [his claim] wasn't allowed back in 1985" to be an NOD as to the effective date of his award. Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010), rev'd sub nom. Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011) (citing Anderson v. Principi, 18 Vet.App. 371, 375 (2004)). In construing the Veteran's submission broadly and considering not only the actual words of the August 21, 2008 document but also the context of the claim as a whole, the Board finds that the Veteran's August 21, 2008 written statement constitutes an NOD with the termination of his pension benefits effective November 13, 2003. In his statement, the Veteran wrote "I am sending this fax to verify that the case - CSS has [been] terminated. Please reinstate my benefits." Along with this written statement, the Veteran submitted several pages of documents, including a criminal docket sheet showing a dismissal of the criminal case, along with several pages of docket entries showing that the warrant issued in November 2003 was recalled. Taken together, the documents the Veteran submitted can be reasonably construed as a disagreement with the August 2008 determination as to his fugitive felon status because the Veteran states that the criminal case against him has been terminated and provided documentation in an effort to support his position. These documents also indicate a desire for review of the decision to terminate his pension benefits because he unequivocally asked that his benefits be reinstated. Although the Veteran did not use the words "disagreement" or "appeal" in his written statement, it was unnecessary for him to do so because no special wording was required. Moreover, the Board notes that VA is required to review a veteran's submissions liberally. See Anderson, 18 Vet.App. at 375; Mason v. Brown, 8 Vet. App. 44, 57 (1995) (noting that the Court must liberally construe an NOD). Thus, given the context of the Veteran's August 21, 2008 written statement, the Board finds that it constitutes a valid and timely filed NOD. ORDER The August 21, 2008 written statement of the Veteran was a timely submitted Notice of Disagreement with the August 2008 decision terminating the Veteran's pension benefits effective November 13, 2003. REMAND Propriety of the Termination of Pension Benefits and Validity of the Debt Because the Board finds that the Veteran's August 21, 2008 correspondence constitutes a valid and timely filed NOD, the issue of the propriety of the termination of the Veteran's pension benefits, to include a determination of his status as a fugitive felon for the period November 13, 2003 through February 15, 2008, must be remanded for the issuance of an SOC. 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999)( holding that after a timely NOD is submitted, the next step in the appeal process is for the RO to issue an SOC, and that where no SOC is issued, the Board should remand the claim for issuance of an SOC); Holland v. Gober, 10 Vet. App. 433, 436 (1997) (stating that once the RO issues an SOC regarding the appealed issues, the appellant will be able to obtain appellate review on those issues by filing a substantive appeal to the Board). Where a timely NOD is submitted as to a veteran's claim, but the RO never responded by issuing an SOC as required by law and regulation, the remedy is for the matter to be remanded to the RO for issuance of an SOC. Anderson, 18 Vet. App. at 375. In addition to submitting a timely NOD to the August 2008 decision to terminate his benefits, the Veteran has also challenged the validity of the debt created by this decision. In the Veteran's September 2016 post-hearing memorandum, his representative states that he "waives review by the [AOJ] to allow the Board to address all of the issues in his case," including the determination of the Veteran's status as a fugitive felon and whether the debt in favor of the government is valid. See September 2016 Post-Hearing Memorandum at 2. Despite the Veteran's attempt to have the Board adjudicate all of the issues he raises, the Board cannot do so because it may not adjudicate any issue raised in this matter on which an SOC has not been issued, and does not have jurisdiction to address any issue that has not been addressed by the AOJ in the first instance. The Board's jurisdiction is limited to deciding questions in appeals of decisions by the Secretary or his delegates. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.101 (2016); Bernard v. Brown, 4 Vet. App. 384, 390 (1993). Section 7105 "establishes a series of very specific, sequential, procedural steps that must be carried out by a claimant and the RO . . . before a claimant may secure 'appellate review' by the [Board]." Bernard, 4 Vet. App. at 390. "Indeed, as an appellate tribunal reviewing the Secretary's decision on a claim for benefits . . . and absent the grant of original jurisdiction, the Board has no authority to adjudicate such a claim in the first instance." Jarrell v. Nicholson, 20 Vet. App. 326, 331 (2006) (internal citations omitted). "Moreover, it is axiomatic that in the absence of legislation authorizing otherwise, jurisdiction cannot be conferred-nor can the lack of jurisdiction be waived-by the parties." Id. at 331(internal citations omitted). Thus, to the extent that the AOJ has not adjudicated the Veteran's challenge to the validity of the debt at issue in the first instance, the Board cannot adjudicate that issue at this time. As the issue is inextricably intertwined with the remanded issue of the propriety of the termination of pension benefits, however, the issue of the validity of the debt is also remanded to the RO for adjudication. See 38 U.S.C.A. § 5103A (g) (West 2014). Moreover, 38 C.F.R. § 19.9(c) specifically states that in cases before the Board in which a claimant has timely filed an NOD with a determination of the AOJ on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with an SOC, "the Board shall remand the claim to the [AOJ] with instructions to prepare and issue a Statement of the Case . . . ." While the provision does state that a remand for an SOC is not required if the claimant withdraws the NOD, there is nothing in the regulation that allows the Board to adjudicate such an issue, even with a waiver from the claimant. Consequently, to the extent that the Veteran submitted a timely NOD to the August 2008 decision terminating his pension benefits effective November 13, 2003 based on his status as a fugitive felon, the Board must remand the matter for issuance of an SOC. Waiver of Overpayment To the extent that the debt in favor of the government is determined to be valid, the Veteran has indicated his desire to seek a waiver of any overpayment. Before adjudication of a waiver application, the lawfulness of a debt must first be determined. See Schaper v. Derwinski, 1 Vet. App. 430, 434-35 (1991)(noting that the propriety and amount of the overpayment at issue are matters that are integral to a waiver determination). Thus, the issue of entitlement to a waiver of overpayment is also remanded as inextricably intertwined with the validity of the debt issue. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As set forth above, the Veteran previously sought a waiver of overpayment in February 2009, which was denied in an August 2009 decision by the COWC. The Veteran submitted a timely NOD with the February 2009 decision, but did not submit a substantive appeal after the issuance of an SOC in December 2009. Although this would ordinarily render the February 2009 COWC decision final, because the Board finds that the August 21, 2008 written statement was a valid NOD, any decision with regard to a request for a waiver of overpayment was premature because the validity of the debt had not been established. Thus, the Board finds that the February 2009 COWC decision denying a waiver of overpayment is void ab initio. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Issue to the Veteran and his representative an SOC regarding the issue of whether the termination of the Veteran's pension benefits effective November 13, 2003 was proper, to include his status as a fugitive felon pursuant to 38 U.S.C.A. § 5313B for the period from November 13, 2003 to February 15, 2008. He should be advised of the requirements to timely perfect an appeal. 2. Adjudicate the Veteran's challenge to the validity of the debt in the amount of $45,274.34. If it is determined that the debt is valid, adjudicate the issue of entitlement to waiver of overpayment. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs