Citation Nr: 1804054 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 05-14 126A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. The validity of an overpayment of pension benefits in the calculated amount of $32,550.00. 2. Entitlement to waiver of recovery of an overpayment of pension benefits in the calculated amount of $32,550.00. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to April 1974. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2004 decision of the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas (RO) which retroactively adjusted the Veteran's pension benefits, effective in February 1999, to account for previously unreported income. This adjustment resulted in the creation of an overpayment in the calculated amount of $26,271.00. The Veteran appealed the validity of the debt, and also requested waiver of recovery of the overpayment. In a June 2006 decision of the Committee on Waivers and Compromises (COWC), waiver of recovery of an overpayment in the amount of $32,559.00 was denied. The higher amount was due to additional adjustments of pension payments subsequent to the February 2004 action. The Board finds that the challenge of the validity of the debt must be construed to encompass the entire overpayment of $32,559.00. In April 2007, the Veteran appeared at a Travel Board hearing before the undersigned. His representative identified the issues as including waiver of recovery of the overpayment, and the Veteran testified regarding equitable elements, such as financial hardship. The Board accepts his testimony as a notice of disagreement with the waiver issue. See Tomlin v. Brown, 5 Vet. App. 355 (1993). The Board remanded the appeal in January 2008 for additional development. The Board finds, however, that the requested development was not accomplished and, unfortunately, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in the prior January 2008 Board remand, the present claim covers overpayments assessed for the period from February 1999 through August 2005, due to award actions taken from February 2004 to September 2005. The calculated overpayment of $32,559.00 does not include an overpayment of $3,554.00, assessed in October 2002, which was waived by the RO in May 2003. The February 2004 and subsequent awards have accounted for the waiver of this debt in the calculations; the debt of $32,559 is in addition to the waived debt of $3,554.00. The initial overpayment appears to have been created based on an income verification match (IVM) showing unreported income received in 1999 and/or 2000. The current record before the Board appears to be incomplete, and evidence referenced Board's 2008 remand is no longer of record. Additionally, the Board has no record of any development that has been conducted on remand. Accordingly, the Board finds that a remand is necessary to reconstruct the record to the extent possible, and to associate any original records from the Debt Management Center and any available records from the IVM folder with the electronic record. As noted in the January 2008 Board remand, the Veteran challenged the validity of the overpayment created as a result of a February 2004 retroactive reduction of VA pension benefits, based on evidence received showing that he received income beginning in 1999 that he had not reported. This resulted in an overpayment in the calculated amount of $26,271.00. He disputed the creation of the debt, contending that he did not earn the income attributed to him by VA. In hearing testimony, the Veteran acknowledged the income received in 1999 or 2000, but indicated that the employment position was temporary and did not verify the income as recurring in succeeding years. The Board's prior remand noted that the earned income attributed to the Veteran for 2002, 2003, and 2004 was based on income he received in prior years. However, the Veteran's income had been variable, with earnings from temporary employment with various employers, as well as unemployment benefits received at some times. Due to the Veteran's dispute of the amount of income attributed to him, the unverified income attributed to the Veteran for the period beginning January 2001, his history of variable income, and unexplained differences as reported in paid and due audits, the Board remanded the appeal so that all evidence verifying or acknowledging income from January 2001 could be associated with the record. After this information was received, the debt was to be recalculated, and an audit was to be conducted. The Board finds that after efforts have been made to reconstruct the record, the AOJ or Debt Management Center should conduct an audit of the Veteran's debt and associate it with the record. See Stegall, 11 Vet. App. at 268. With respect to the appeal for a waiver, April 2007 Board hearing testimony was construed as a timely notice of agreement to that issue, and the Board finds that on remand, the AOJ must furnish the Veteran a statement of the case (SOC) addressing that issue. To date, an SOC addressing that issue has not been associated with the record. The Veteran should be advised that a timely substantive appeal (VA Form 9 or an equivalent writing) will be required for appellate review of the additional issues. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Stegall, 11 Vet. App. at 268. Additionally, the Veteran should be asked to submit an updated Financial Status Report. Accordingly, the case is REMANDED for the following action: 1. The AOJ should make efforts to reconstruct the record, should associate any original records from the Debt Management Center with the electronic record, and should associate any available record or records from the original IVM folder with the electronic record or legacy content manager as appropriate. 2. The Veteran should be notified of the unavailability of any relevant records, in accordance with the VA Adjudication Procedure Manual, M21-MR, Part III, Subpart ii, Chapter 4, Section D.15, (the M21-MR). If the Veteran or his representative have copies of any of the missing records, they should submit them on remand. 3. The AOJ should try to ensure that all evidence verifying or acknowledging income from January 2001 through August 2005 is associated with the record and should request that the Veteran provide relevant income information for any period not accounted for from 1999 to 2005. 4. The AOJ should recalculate the Veteran's debt and provide an audit of the overpayment debt. This should include an explanation of the income attributed to Veteran over the course of the appeal period. 5. The AOJ should ask the Veteran to submit an updated Financial Status Report, listing current assets, debts, income and expenses. 6. The AOJ should request that the VA DMC provide copies of records pertaining to the withholding of the Veteran's pension benefits for the period from February 1999 to August 2005. 7. The AOJ should issue a statement of the case addressing the claim for waiver of recovery of an overpayment in the calculated amount of $32,559. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal. The AOJ should advise the Veteran that the appeal will not be returned to the Board for appellate consideration following the issuance of the SOC unless he perfects his appeal. 8. After all development has been completed, the AOJ should review the appeal with regard to the validity of the debt based on the additional evidence. If any benefit sought on appeal remains denied, the AOJ should furnish the Veteran and her representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The appellant 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 (2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), 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).