Citation Nr: 1803449	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  09-40 317	)	DATE
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On appeal from the Department of Veterans Affairs Committee on Waivers and Compromises in St. Paul, Minnesota


THE ISSUE

Entitlement to waiver of recovery of improved pension benefits in the original amount of $16,052, to include whether the overpayment was properly created. 


REPRESENTATION

Veteran represented by:  Texas Veterans Commission


ATTORNEY FOR THE BOARD

N. Robinson, Associate Counsel







INTRODUCTION

The Veteran served on active duty from August 1971 to May 1972.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Committee on Waivers and Compromises that denied the Veteran's claim for waiver of recovery of an overpayment of improved pension benefits in the amount of $16,052.
 
This case was previously before the Board in March 2012 and remanded for additional development.   

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


REMAND

An additional remand is necessary because there was not the required substantial compliance with the Board's previous remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance).  
 
First, the audit performed by the AOJ does not clearly answer the appealed issue of whether the debt is valid, i.e., whether the amount is correct.  In a May 2012 Supplemental Statement of the Case (SSOC), the AOJ stated that the original overpayment of $16,052.00 was reduced to $8171.63 based on the Veteran's corrected periods of incarceration.  However, in August 2012, the AOJ sent the Veteran audit results without explanation that appeared to indicate a debt amount of $16,052.  

Second, the SSOC states that the Veteran did not explain his delay in filing a waiver; however, in July 2011 the Veteran submitted a detailed written statement.  To summarize, he believes that a VA employee misled him into believing he could receive full benefits while incarcerated, and that his daughter forged his name to cash his benefit checks without advising him of the accompanying letters from VA regarding the created debt.  

On remand, the RO should readjudicate the validity of the debt and send a clear statement to the Veteran identifying 1) the total created debt and 2) the amount still owed by the Veteran to VA.  The AOJ should then adjudicate the question of whether the Veteran is entitled to a waiver of repayment.  

Accordingly, the case is REMANDED for the following action:

1.  Prepare an audit of the Veteran's account. This should include the amounts the Veteran was paid and the amounts due for the period of the debt, with acknowledgment of any periods in which the Veteran was NOT incarcerated.  The document sent to the Veteran should clearly state a) the entire amount of created debt and b) the amount stilled owed by the Veteran to VA.  

2.  Adjudicate the Veteran's claim that the overpayment was not properly created.

3.  Following completion of the above, the AOJ should review the evidence, including the Veteran's July 2011 letter explaining his delayed waiver application, perform any additional needed development, and determine whether his claim may be granted.  If the claim remains denied, the AOJ should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.

The Veteran has the right to submit additional evidence and argument on the remanded matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  As a remand, this matter must be handled expeditiously.  38 U.S.C. §§ 5109B, 7112 (2012).




_________________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals