Citation Nr: 1802081 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-09 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to waiver of recovery of an overpayment of VA nonservice-connected pension benefits in the amount of $10,548, to include the issue of whether the overpayment is valid. [The issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability and entitlement to service connection for a right knee disability are also on appeal and will be the subject of a separate decision under a different docket number.] REPRESENTATION Veteran represented by: Virginia A. Noble, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1965 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2011 determination by a Committee on Waivers and Compromises at the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied waiver of recovery of an overpayment of VA nonservice-connected pension benefits in the amount of $10,548. The Chicago, Illinois RO is currently handling the appeal. In October 2017, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. The Veteran also testified at an earlier hearing before a Decision Review Officer at the RO in January 2012 . The issue of entitlement to retroactive apportionment funds for the Veteran's dependent son has been raised by statements of the son and his mother (the Veteran's ex-wife). Historically, the son had been receiving an apportionment of the Veteran's VA benefits before they ceased upon his higher school graduation in May 2007. The son then attended college beginning in August 2007. VA sent a letter to the son in March 2008, requesting information to determine his entitlement to continued benefits based on continuous school attendance. It appears that documents were submitted by the mother and son from March 2008 to August 2008, in response to the request. Nevertheless, a special apportionment decision in August 2009 granted an apportionment from an effective date of September 1, 2009. A September 2009 VA letter to the son explained the effective date, stating that VA did not receive his response for additional information to its March 2008 request until August 2009 (after one year had passed from its initial request). The mother then filed a notice of disagreement (NOD) with the effective date of the apportionment decision in September 2009, and in a November 2009 letter to the son the Milwaukee Pension Management Center acknowledged his written disagreement. However, in April 2010 the VA (Chicago RO) sent the Veteran a letter, explaining to the son that he must sign the NOD filed by his mother. There is no indication that the son received the letter, requesting his signature on the NOD, and it does not appear that any further action has been taken on the matter of a retroactive award of an apportionment for the son while he was a full-time college student. Thus, the Board does not have jurisdiction over it, but it is referred to the AOJ for appropriate action, to include determining whether an appeal has been initiated on the retroactive apportionment matter. 38 C.F.R. § 19.9(b) (2017). The issues listed in brackets on page 1 flow from a January 2012 rating decision by the Chicago RO, and are docketed under a different docket number. They are the subject of a separate decision. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran seeks a waiver of recovery of nonservice-connected pension benefits of $10,548. The Committee on Waivers in March 2011 denied his request, stating that it would not be against equity and good conscience to recover the debt. The Committee noted that the Veteran had requested his VA benefits be switched from monthly pension payments (which he had been receiving for many years) to disability compensation payments (for which he had a combined rating of 10 percent at that time). Notably, the Committee also stated that there was "limited evidence available regarding the creation of the debt." In the March 2012 statement of the case (SOC), VA further indicated that the debt was valid, and continued to deny the Veteran's waiver request, yet there was no clear indication as to the reason for the creation of the debt. Rather, VA generally referred to an obligation to report changes in factors that affected entitlement to pension in a timely manner. VA also noted that the Veteran's request to stop his pension benefits was more than a year after his benefits should have been stopped and after he had received an overpayment letter (the timeliness issue appears incorrect, as will be explained). It would appear from a review of the claims file including testimony at hearings that the pension payments were stopped based on the Veteran's request, purportedly because he was anticipating the receipt of Social Security benefits. Records in the file from an inquiry to the Social Security Administration appear to show that the Veteran began to receive SSA benefits in October 2009. In any case, the evidence in the file does not reflect the underlying reason for the creation of the overpayment, although one can suspect that the receipt of SSA benefits is a possible factor. The records also show, contrary to what was stated in the SOC, that the Veteran did indeed notify VA in a timely manner (i.e., in October 2009) that he desired to have his pension payments stopped that month (a copy of such request was also received into the record at a later date). The period of the overpayment at issue, as noted by the Committee on Waivers, is November 1, 2009 through October 2010. The AOJ should associate with the record documents to show the precise basis for the creation of the overpayment; such evidence is necessary before the Board can decide the claim. The Committee on Waivers decision refers to a November 2010 award letter that reduced VA benefits effective November 1, 2009 and created the overpayment. This letter is not in the claims file, so the reason for the retroactive action is not apparent. The matter of clarifying the creation of the debt is paramount here. While the Veteran has not explicitly disputed the amount of the overpayment assessed against his account, he has argued in statements and testimony that the debt is the result of sole VA administrative error for not stopping his payments of pension in a timely manner once he requested to receive disability compensation payments in lieu of the pension. Sole VA error, if found, would result in a declaration that the debt was invalid. The preliminary issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. Schaper v. Derwinski, 1 Vet. App. 430, 434-35 (1991). As the record now stands, the Board is unable to assess whether there is a basis for finding that the debt is invalid in the absence of evidence showing why pension payments were stopped. Accordingly, the case is REMANDED for the following : 1. The AOJ should associate with the claims file: (a) the VA letter sent to the Veteran in or about November 2010, notifying him of the retroactive reduction/change in his nonservice-connected pension benefits (according to the Committee on Waivers in March 2011), and (b) any other documentation to show how the debt of $10,548 was created in the Veteran's account. 2. The AOJ should prepare an audit of the Veteran's pension/compensation account, setting forth the period of the overpayment at issue, the amounts due and paid to the Veteran for that period only, and the reason(s) behind the creation of the overpayment. The audit should be associated with the claims file, and a copy of the audit should be sent to the Veteran. 3. The AOJ should adjudicate the threshold issue of whether the overpayment of pension benefits is valid, to include consideration of the Veteran's assertions of sole VA error in the creation of the overpayment for not stopping his pension payments in a timely manner once he requested to receive disability compensation payments in lieu of the pension (documents in the file show he submitted statements in October 2009, requesting that his pension be stopped). The AOJ should cite to the pertinent laws and regulations that support its determination on the validity of the debt. 4. After the above development is completed, the AOJ should review the claims file and readjudicate the claim for waiver of recovery of an overpayment of nonservice-connected pension benefits, explaining with clarity the basis for the decision. If the benefit sought remains denied, the AOJ should furnish the Veteran and his representative an appropriate supplemental SOC, afford them opportunity to respond, and return the case to the Board. 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 remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).