Citation Nr: 1804696 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-35 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to waiver of recovery of an overpayment of VA pension benefits, to include whether the overpayment was properly created. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to December 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Milwaukee Committee on Waivers and Compromises (COWC) dated in January 2013, which denied waiver of recovery of an overpayment of pension benefits. In October 2015, the Veteran and his wife appeared at a hearing held at the Montgomery, Alabama, RO before the undersigned (i.e., Travel Board hearing). In this regard, although jurisdiction of the Veteran's claims file lies with the Montgomery RO, and the Veteran resides in that state, pension awards from that RO are processed at the Milwaukee Pension Management Center (PMC). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a December 2015 remand, the Board instructed that if the Veteran's claim of entitlement to waiver of recovery of an overpayment of VA pension benefits, to include whether the overpayment was properly created, was not granted, he and his representative should be provided with a Supplemental Statement of the Case (SSOC) and be given an appropriate period of time to respond. The AOJ did not comply with the Board's directive to issue a SSOC. As noted by the Veteran's representiative in the December 2017 brief, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App 268 (1998). Consideration has been given to a September 2017 letter from the AOJ that informed the Veteran that he had yet to provide evidence to support his payment of caregiver fees for the period from January 1, 2011 to October 31, 2012. The RO advised him that there was no time period to submit evidence to offset the debt and that if the evidence was received his debt would be reviewed and the necessary adjustments would be made. However, as he had not responded, the AOJ indicated that it assume that he did not have entitlement to the benefit and that all payment previously issued to him would be due to VA. The issuance of the September 2017 does not relieve the AOJ of its obligation to provide the Veteran with a SSOC. Without the issuance of a SSOC, substantial compliance with the Board's remand directives was not satisfied, and the matter must be remanded once more to ensure proper development. As another remand is warranted the Veteran should be afforded one more opportunity to submit evidence to substantiate his claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Once again, inform the Veteran that since he has alleged that the overpayment is not a valid debt, i.e., that he does not owe this money, in order to reduce or eliminate the remaining overpayment of $11,666, he must clearly document the additional medical expenses claimed to have been paid to a caregiver in 2011 and 2012. This must consist of a computer summary, ledger, and/or bank statement, from the Veteran or the caregiver, that documents she received money, in addition to the $21,300 previously accepted by the PMC, as payment for her caregiver assistance provided in 2011 and 2012. The caregiver evidence submitted must also include the amount paid, the date payment was made, the purpose of the payment (the nature of the product or service provided); for example, the number of hours of assistance the payment covered. Clarify that this is a separate matter from the waiver of the overpayment issue, which is still on appeal, and does not require the additional information. Explain that the waiver issue involves whether the Veteran should have to pay the overpayment back to VA, whereas if the overpayment is not valid, there would be no overpayment. 2. Afterwards, the AOJ must readjudicate the issue of entitlement to waiver of recovery of an overpayment of VA pension benefits, to include whether the overpayment was properly created. If the issue remains denied, the Veteran and his representative must be furnished a fully responsive SSOC and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 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).