Citation Nr: 1756748	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  16-45 869	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Whether the recoupment of special separation benefits by withholding Department of Veterans Affairs (VA) disability compensation in the amount of $1,159.68, is proper.


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel


INTRODUCTION

The Veteran served on active duty from January 1981 to September 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 decision of the Department of Veterans Affairs (VA) Evidence Intake Center in Newnan, Georgia.  This appeal was certified to the Board by the VA Regional Office (RO) in Columbia, South Carolina. 
In April 2017 the Board remanded the appeal for additional development.  
 
As previously noted when the claim was before the Board, a sympathetic review of the record indicates that the Veteran has also requested a waiver of that debt, claiming severe financial hardship and arguing that he was not at fault in the creation of the debt at issue.  Because the RO has not yet considered the Veteran's waiver request, the Board does not have jurisdiction of that issue and it is again referred for appropriate action.  38 C.F.R. § 19.9 (b) (2017); see also 38 C.F.R. 
§ 1.911 (c)(1) (2017); VA O.G.C. Prec. Op. No. 6-98, published at 63 Fed. Reg. 31,264  (1998) (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). 

In November 2017, the Veteran revoked the power of attorney for Thomas E. Andrews, III, who had previously represented him in the appeal.  The Board recognizes the Veteran as proceeding pro se.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

The Board notes that the issues of entitlement to service connection for a right eye disability, entitlement to higher ratings for status-post right elbow disability, limitation of extension and supination of the right elbow, traumatic glaucoma and cataract of the left eye, and entitlement to special monthly compensation based upon aid and attendance and/or housebound status, will be addressed in a separate decision.  See BVA Directive 8430,14(c)(10)(a)(7) (providing that because they differ from other issues so greatly, separate decisions shall be issued in compensation and recoupment of severance or separation pay cases in order to produce more understandable decision documents).






REMAND

In the April 2017 remand, the Board instructed the AOJ to adjudicate the Veteran's challenge of the recoupment of special separation benefits by withholding VA disability compensation in the amount of $1,159.68.  The Board noted that the Veteran did not appear to be in disagreement with the amount of the recoupment at issue, but rather, he disagreed with VA's efforts to collect the outstanding $1,159.68, on the basis that the failure to collect the correct amount in 1992 was VA's error alone.  In essence, the Veteran's argument was that the debt at issue was invalid based on the theory of sole administrative error.  The Board further found that because the AOJ had not yet addressed the issue of sole administrative error, to avoid any possibility of prejudice, the appeal should be remanded for AOJ adjudication.  Bernard v Brown, 4 Vet. App. 384 (1993).  Since the requested development in the April 2017 Board remand has not been completed, a remand is necessary in order to correct this deficiency.  Stegall v. West, 11 Vet. App. 268   (1998).

Accordingly, the case is REMANDED for the following action:

The AOJ should adjudicate the Veteran's challenge of the recoupment at issue, including the issue of sole administrative error.  If it is determined that the recoupment was proper, the Veteran should be provided with a supplemental statement of the case and the appropriate opportunity to respond.

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 2012).



_________________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2012), 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) (2017).