Citation Nr: 1801217 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-08 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a waiver of recovery of overpayment of VA benefits in the amount of $48,980.00. REPRESENTATION Appellant represented by: Anthony J. Peraica, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 and January 2014 decisions of the Committee on Waivers and Compromises of the Department of Veteran's Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin that determined that the Veteran was not entitled to a waiver of recovery of overpayment of $48,980 in VA benefits. The Veteran provided testimony at a March 2017 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Virtual VA claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim. In a December 2014 substantive appeal, the Veteran raised the validity of the debt. Before a decision can be made on whether the Veteran is entitled to a waiver of recovery of the overpayment, it must be determined whether or not the overpayment was properly calculated. See Schaper v. Derwinski, 1 Vet. App. 430 (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). While the issue of whether the creation of a debt was proper has not been addressed by the AOJ and is not currently before the Board, the issue of the validity of the debt is inextricably intertwined with the issue of entitlement to a waiver of recovery of the overpayment. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Additionally, in general, the threshold determination must be made on the propriety of the creation of the debt prior to a decision on the waiver of recovery of indebtedness when the validity of the debt is challenged. See Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). In this case, the Veteran was granted entitlement to pension, effective September 2000. In 2006, the Veteran worked part time, earning $15,520. He reported he did not have an income in 2007. In 2008, the Veteran attempted to go back to work part time again, earning $16,046. The Veteran reported that he did not return to work in 2009, or anytime thereafter, stating that his nonservice-connected disabilities prevented him from retaining employment. In February 2010, the Veteran was notified that due to his income in 2006 and 2008, he received an overpayment in the amount of $24,000. In March 2010, the Veteran submitted a statement, requesting a waiver of his overpayment due to hardship. An April 2010 Decision on Waiver of Indebtedness granted the Veteran's waiver in full. The decision waived repayment of the period in which the Veteran accrued the overpayment of $24,000, which was stated as February 2006 through January 2010. The Veteran then requested that his pension be reinstated in June 2010. In August 2010, VA notified the Veteran that his nonservice-connected pension benefits were reinstated, effective February 2009. In December 2011, VA notified the Veteran of the cost of living increase that would apply to his pension for 2012. The letter also determined that the Veteran's net countable income was $0. Then, in October 2012, VA notified the Veteran that he was overpaid in the amount of $48,980.00. The notification letter stated that the Veteran should have received a letter explaining that his pension benefits had recently changed. In November 2011, the Veteran contacted VA to report that he did not received the referenced letter, and VA reported that the claim file did not contain the referenced letter. See November 2012 Report of General Information. The Veteran submitted a waiver request in November 2012, which was denied in December 2012. The December 2012 Decision on Waiver of Indebtedness reported that the period of overpayment was from February 2008 through September 2012, totaling $48,980.00. The Committee on Waivers and Compromises found that the Veteran was free of fraud, misrepresentation or bad faith, however, they found the Veteran at fault because he failed to report his income in 2008, and a repayment would not defeat the intended purpose of the pension benefit. The Veteran appealed the December 2012 decision and was afforded a Board videoconference hearing in March 2017. The Veteran stated that he has not worked since 2008. The Veteran testified that he was under the impression that the April 2010 waiver applied to the period in which he received an overpayment due to his 2008 part time work. Neither the Veteran, nor his representative, knew why VA determined that the Veteran was overpaid $48,980.00. Accordingly, the case is REMANDED for the following action: 1. Prepare an accounting that establishes the time period of the debt. 2 Develop and adjudicate the Veteran's claim of whether the debt in the amount of $48,980.00 for overpayment of pension benefits is valid. Notice of the decision and Veteran's rights should be provided to the Veteran and his representative. The issue of the validity of the debt should be returned to the Board only if an appeal is timely completed. 3. After the above development is completed, the AOJ should review the claims file and readjudicate the claim for a waiver of recovery of overpayment of pension benefits in the amount of $48,980.00. 4. If the Veteran's request for a waiver of recovery of the overpayment remains denied, provided the Veteran with a supplemental statement of the case (SSOC). The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ H. N. SCHWARTZ 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).