Citation Nr: 1806079 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-07 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether the amount of the retroactive payment awarded to the Veteran based on a rating decision dated in August 24, 2011, was proper. (The issues of entitlement to service connection for an eye condition; entitlement to an initial compensable evaluation for irritant dermatitis prior to December 5, 2013, and an evaluation in excess of 30 percent thereafter; entitlement to an evaluation in excess of 60 percent for urinary incontinence, residual of prostate cancer, and; entitlement to annual clothing allowance are addressed in separate decisions). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision and September 2011 administrative decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2016. A transcript of this hearing is of record. FINDING OF FACT In an August 2011 rating decision the RO granted additional disability compensation and a retroactive payment was established pursuant to Nehmer v. U.S. Department of Veterans Affairs. From the total retroactive amount of benefits payable to the Appellant, the RO withheld the $9,494 overpayment that was previously waived. CONCLUSION OF LAW The Veteran is entitled to an additional $9,494 in retroactive payment for the August 2011 grant of benefits. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 3.816 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In a rating decision dated in February 2002 basic eligibility to Dependents' Educational Assistance was established from June14, 2001. Compensation and Pension Award statements, dated in February 2002 and August 2004, indicate that the Veteran's son was included on his award. In a notice to the Veteran, dated in March 2005, it was reported that it was proposed to remove the Veteran's son from his award since he was receiving Chapter 35 Dependents' Educational Assistance which was the higher paying education benefit effective August 23, 2004. It was noted that this would result in an overpayment. Thereafter, an overpayment in the amount of $9,494 was created. The Veteran requested a waiver of this overpayment and in an administrative decision dated in February 2009, waiver of the overpayment was granted. In a rating decision dated in August 2011, the RO granted service connection for ischemic heart disease, with coronary artery disease and implanted automatic implantable cardioverter defibrillator associated with herbicide exposure, and assigned an evaluation of 100 percent effective June 14, 2001. In addition, the RO granted entitlement to special monthly compensation based on housebound criteria being met, effective June 14, 2001. In the notification of the rating decision and award it was noted that the estimated amount of retroactive benefits was $35,148. It was noted that the retroactive benefits were a result of the United States District Court's order in Nehmer v. U.S. Department of Veterans Affairs. Thereafter, the Veteran was notified in September 2011 that an audit of the Veteran's account determined that the Veteran was granted a waiver of a debt for $9,494 that was incurred within the same period as your retroactive disability award. The statement reported that VA regulations prohibit paying retroactive benefits for a period of entitlement that runs consecutive with a period that was affected by a preciously waived debt, because to do so would essentially result in paying the Veteran double for the same period of entitlement. The Veteran's retroactive award was reduced by the waiver to $25,654. A March 2014 Statement of the Case (SOC) indicates that the overpayment was created because the Veteran was paid an additional amount of compensation based on a schoolchild when the Veteran was not entitled to that additional amount because the child had been receiving Chapter 35 education benefits during the same time frame. It was this amount of overpayment that was waived. Thereafter, entitlement to a greater amount of compensation was granted in August 2011 and the retroactive period of time for which the additional benefits was granted encompassed the same time frame during which the Veteran received the overpayment which was waived. It was reported that the schoolchild dependent was removed in VA's system effective August 23, 2004. It was further reported that when VA's computer system automatically calculates the amount of a retroactive payment, it uses the payment amounts as they are shown in the Veteran's record. It was noted that although the Veteran was not required to repay the overpayment of benefits, in the Veteran's record, his historical payment data shows the removal of his schoolchild dependent. The retroactive payment was, therefore, calculated based on the monthly payments the Veteran should have received and was not based on the monthly payments he actually received. Since the Veteran actually received over $9,000 more than he was entitled to, the SOC reported that his retroactive payment must be reduced by the same amount to prevent a double payment. The Appellant argues that the $9,494 in overpayment that had previously been waived should not have been subtracted from his retroactive payment. The RO cited no authority (and the Board can find no law or regulation) supporting the idea that a validly waived debt may later be taken back by VA. When the waiver of overpayment was granted, the matter was settled, and VA lost any claim or title to that additional amount. As such, the reduction of the retroactive payment awarded to the Veteran based on an August 2011 rating decision, was not proper, and an additional $9,494 must be added back to the Appellant's retroactive payment. ORDER An additional $9,494 in retroactive payment for the August 2011 grant of benefits, is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs