Citation Nr: 1800740 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-54 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Debt Management Center (DMC) in St. Paul, Minnesota THE ISSUE Whether an overpayment of compensation and pension benefits in the amount of $19,334.00 was validly created. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Anderson, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2000 determination by the DMC in St. Paul, Minnesota. This matter was previously before the Board in October 2015. Unfortunately, another remand is required. There are multiple appeals currently before the Board that arose at different times. As such, the appeals have different docket dates. For efficiency, the Board will adjudicate all appeals over which it has jurisdiction. See Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006) (holding that 38 U.S.C. § 7107 is not an exclusive set of rules by which the Board must consider and decide cases, but rather was intended "to set broad guidelines for the general order of processing appeals at the Board to ensure fairness, efficiency, and timeliness in consideration and decision of appeals"). The issue of whether an overpayment of compensation and pension benefits in the amount of $19,334.00 was validly created is addressed in this decision. The issue of entitlement to an initial rating in excess of 30 percent for a spastic stomach, to include irritable bowel syndrome is addressed in a separate decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In October 2015, the Board remanded this matter for the AOJ to issue a statement of the case (SOC) addressing whether an overpayment of compensation and pension benefits in the amount of $19,334.00 was validly created. The remand noted that the appeal stemmed from a June 2000 determination that an overpayment of $19,334.00 was created due to a retroactive reduction in the Veteran's pension benefits based on the discovery of unreported income. While an SOC was issued in October 2016, it incorrectly indicated that the appeal stemmed from an August 2013 determination and June 2015 notice of disagreement (NOD), rather than the June 2000 determination and July 2000 NOD as specified in the October 2015 remand. Additionally, with regard to the explanation of the creation of the debt, the SOC stated that an overpayment of $8,988.00 was created because the Veteran's income from January 1, 2009 through July 31, 2009 exceeded the maximum annual pension rate, which when combined with his existing overpayment of $8988.00 amounted to $19,334.00. Initially, the Board notes that when added together the overpayment amounts noted in the SOC amount to $17,976.00 not $19,334.00. Additionally, the SOC discussion is erroneous because any overpayment from 2009 would be irrelevant to the June 2000 determination. Also, while the SOC indicated that there was an "existing overpayment of $8988.00," the AOJ provided no explanation of the basis of that overpayment. In light of the above, the Board finds that the October 2016 SOC is materially defective and does not provide the Veteran appropriate due process. 38 C.F.R. § 19.29 (2017) (an SOC must contain a summary of the evidence in the case relating to the issue or issues with which the Veteran has expressed disagreement). As such, there has not been substantial compliance with the prior remand directive and another remand is necessary to issue a corrective supplemental statement of the case (SSOC). See 38 C.F.R. § 19.31(b)(2),(3) (2017) (an SSOC will be furnished when there is a material defect in the SOC or prior SSOC, or for any other reason the SOC or prior SSOC is inadequate); see also Stegall v. West, 11 Vet. App. 268 (1998). Additionally, a May 2000 VA 21-8947 Compensation and Pension Award notes that income verification match (IVM) information from 1997 was used in calculating the overpayment. While the Veteran's electronic claims folder contains IVM match information from 2009 and 2010, it does not appear to contain the referenced IVM match information from 1997. As such information may be relevant to determining the validity of the debt, on remand the AOJ should obtain and associate with the claims file any outstanding IVM documents, including the referenced 1997 IVM match information. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding IVM documents, including the referenced 1997 IVM match information. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the Veteran must be notified. 2. Thereafter, readjudicate the claim based on a review of the information above. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided an updated SSOC, and given an opportunity to respond, before the case is returned to the Board The appellant 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 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. §§ 5109B, 7112 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).