Citation Nr: 1801718 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to waiver of overpayment. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968, and from February of 1973 to February of 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 decision by the Committee on Waivers and Compromises (COWC) of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's request for a waiver of an overpayment of VA benefits in the amount of $11,200.07. Jurisdiction over the Veteran's claims file has been transferred to the RO in Nashville, Tennessee. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2017. A transcript of that hearing is associated with the claims folder. The issue of whether or not the RO improperly discontinued benefits for the Veteran's stepson (A.G.) was raised by the Veteran during his August 2017 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he is entitled to a waiver of overpayment for an amount which represents payment of additional compensation for a dependent spouse (A.M.). The Veteran argues the following: he never received the RO's December 2012 letter (requesting dependency information). He was married to A.M. for most of the time in question; he did not divorce A.M. until June 2012. See transcript of Veteran's hearing, held in August 2017; Veteran's statement (VA Form 21-0958), received in July 2013; Veteran's appeal (VA Form 9), received in August 2014. In 2004, the Veteran filed a "Declaration of Status of Dependence" (VA Form 21-686c) in which he reported that he was married to A.M. In October 2012, the RO sent the Veteran a notice and requested that he submit dependency information to VA. That same month, the Veteran filed a "Declaration of Status of Dependence" (VA Form 21-686c) in which he did not indicate that he was married. On December 10, 2012, the RO requested that the Veteran submit his dependency information (VA Form 21-686c) ("Declaration of Status of Dependents") within 60 days. The RO stated that if no reply was received within that time, his dependent spouse (A.M.) would be removed from his award, effective October 1, 2004. On July 15, 2013, the RO notified the Veteran that a reply had not been received to the its December 2012 request for dependency information. The RO indicated that additional compensation for a dependent spouse would therefore be stopped effective November 1, 2004. In July 2013, the RO processed an award action to reduce his compensation benefits due to removal of his spouse. That same month, the Debt Management Center (DMC) sent the Veteran a letter informing him that an overpayment of $11,200.07 had been created, for which withholding was scheduled to begin in October 2013. On July 22, 2013, the Veteran submitted a divorce decree which showed that he divorced A.M. in June 2012. In August 2013, the Veteran submitted a financial status report (VA Form 5655) in which he requested a waiver of overpayment. In November 2013, the Committee on Waivers and Compromises (Committee) denied the Veteran's request for a waiver of recovery of the overpayment in the amount of $11,200.07. An administrative decision, dated in January 2016, shows that the RO granted the Veteran's appeal, to the extent that it determined that the effective date for the removal of A.M. as the Veteran's dependent had been changed to July 1, 2012. The following month, the Veteran was sent a notice of this determination. During the Veteran's hearing, held in August 2017, the issue was framed as entitlement to waiver of overpayment in the amount of $11,200.07. A review of the hearing transcript indicates that the Veteran was under the impression that the time period in issue began in 2004; there was no discussion of the RO's January 2016 administrative decision. The Board finds that a remand is required. It is clear that in January 2016, the RO granted a partial waiver of the overpayment of $11, 200.07, to the extent that it determined that A.M. should be removed as a dependent of the Veteran as of July 2012 (i.e., the first day following the month of his divorce). See 38 C.F.R. § 3.501 (2017). Notwithstanding the fact that it appears that the RO notified the Veteran of its partial grant of his appeal in February 2016, a review of the transcript of his August 2017 hearing indicates that the Veteran was not aware of this grant. Furthermore, as the Veteran testified that he divorced A.M. in June 2012, it would appear that he does not disagree with the RO's January 2016 determination. It is therefore unclear whether or not the Veteran disagrees with the certified issue on appeal. On remand, the Veteran should be contacted, the RO's January 2016 administrative decision should be explained to him, and he should be requested to state whether or not he desires to continue his appeal. In this regard, the Veteran should be notified that the issue of whether or not the RO improperly discontinued benefits for his stepson (A.G.) is not within the scope of the certified issue on appeal, and that it has been referred to the RO for appropriate action. The Board further notes that the RO's January 2016 administrative decision did not discuss the remaining amount of the overpayment following its partial grant of the Veteran's waiver request, nor is there any other documentation or discussion of record upon which the Board may base any decision on any remaining amount of overpayment. Accordingly, if the Veteran indicates that he desires to continue his appeal, the RO should issue the Veteran and his representative a supplemental statement of the case that specifically discusses the remaining amount of the overpayment in issue, how this amount was arrived at, and the basis for the denial of his request for waiver of overpayment. Accordingly, the case is REMANDED for the following action: 1. Ensure that January 2016 administrative decision has been properly effectuated to credit the Veteran with any money previously withheld that is due him as a result of this administrative decision. 2. Notify the Veteran of the RO's January 2016 administrative decision, and request that he state whether or not he desires to continue his appeal. If he desires to withdraw his appeal, his withdrawal request should be obtained in writing. 3. If the Veteran states that he does not desire to withdraw his appeal, readjudicate his request for waiver of recovery of the overpayment of compensation benefits, with express consideration of the provisions of 38 C.F.R. §§ 1.962, 1.963, and 1.965(a), and each element of the of equity and good conscience standard, to include a specific discussion of the remaining amount of overpayment in issue. If the claim continues to be denied, the RO/AMC should provide the Veteran and his representative with a supplemental statement of the case, and afford them the opportunity to respond. The Veteran 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. _________________________________________________ MATTHEW W. BLACKWELDER 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).