Citation Nr: 18139907 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 12-33 766A DATE: October 1, 2018 REMANDED Entitlement to waiver of recovery of an overpayment in the amount of $14,657.00, to include validity of the overpayment, is remanded. REASONS FOR REMAND The Veteran had honorable active military service from August 1946 to February 1947. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 decision of a Department of Veterans Affairs (VA) Committee on Waivers and Compromises (COWC), which denied waiver of an overpayment in the amount of $14,657.00 that resulted from adjustments to the Veteran’s non-service-connected disability pension benefits made by the VA Regional Office (RO) in an April 2012 administrative decision. The Veteran was scheduled for a video-conference hearing before a member of the Board in June 2018 but there was some confusion as to which RO it was to be held at. Despite multiple telephone calls from the Veteran and his attorney seeking clarification, it appears it was not still unclear to the Veteran which RO he was to appear at for his hearing. He failed to report on the day of his hearing. In August 2018, the Board sent the Veteran and his attorney a letter advising him that, due to said confusion, he had the right to reschedule his hearing. He was given 30 days to respond to the letter to advise the Board whether he wished to do. He did not respond. Consequently, the Board finds that there is no prejudice to the Veteran in proceeding with his appeal without providing him a hearing before the Board. Entitlement to waiver of recovery of an overpayment in the amount of $14,657.00, to include validity of the overpayment, is remanded. Historically, the Veteran was initially awarded non-service-connected disability pension benefits in September 2008. His Maximum Annual Pension Rate (MAPR) was based upon being a veteran with one dependent. Entitlement to monthly pension benefits was calculated based on countable income from Social Security and annuities for both the Veteran and his spouse reduced by unreimbursed medical expenses. In a February 2010 notification letter, the Veteran was advised that he was awarded a continuing medical expense going forward of $77,757.00. In February 2012, the Veteran submitted his Eligibility Verification Report and Medical Expense Report setting forth his actual income and unreimbursed medical expenses for 2011 and his anticipated income and unreimbursed medical expenses for 2012. In an April 2012 notification letter, the RO advised the Veteran it was adjusting his non-service-connected disability pension benefits in that it reduced his benefits effective January 1, 2011 because of less actual unreimbursed medical expenses than expected, and terminated his benefits effective January 1, 2012 because of excessive income resulting from of an increase in Social Security benefits effective December 2011 and a reduction in allowable unreimbursed medical expenses from counting less prospective medical expenses than the Veteran did and also from what was previously counted. These adjustments resulted in the overpayment to the Veteran upon which this appeal is based. In an August 2012 decision, the COWC denied the Veteran’s request for a waiver of recovery of an overpayment in the amount of $14,657.00. In September 2012, the Veteran submitted a Notice of Disagreement with the denial of only the waiver of the debt. In October 2012, the RO issued a Statement of the Case. In January 2013, the Veteran perfect his appeal by filing a VA Form 9. However, on his VA Form 9, the Veteran set forth the following argument: “Due to my wife receiving state Medicaid benefits, my Minimum Monthly Maintenance Needs Allowance for 2012 was $2,841. This comes out to $34,092 per year. According to the [VA] letter dated April 21, 2012, my predictable medical expenses were $45,255 for 2012, putting me at a net countable income of $11,169. The Minimum Monthly Maintenance Needs Allowance for 2013 is $2,898 per month, or $34,776 per year. If my predictable medical expenses of $45,255 continue for the year 2013, then I will have a net countable income of -$10,479.” Without regard to the merits of the Veteran’s contentions, from a plain reading of his statement, it seems he is arguing that his net countable income would not be excessive and, therefore, he should be entitled to pension benefits. According to the COWC’s waiver decision, the overpayment covers the period from January 1, 2011 to March 31, 2012. The MAPR for a veteran with one dependent effective December 1, 2011 was $16,051. Thus, the Veteran’s contention does cover a part of the period that the overpayment covers, i.e., 2012, and it asserts that, if his net countable income is calculated his way, it would be less than the MAPR. Hence, the Board finds his argument raises the question as to the validity of the overpayment as it raises the question as to whether the RO correctly calculated the Veteran’s pension entitlement for 2012. The Board does not consider the Veteran’s contention as to 2013 because that year was not considered in the April 2012 decision and, therefore, is not part of the overpayment. Thus, the Board finds that the Veteran has raised the issue of whether the creation of the overpayment was valid in the first place or at least whether the overpayment should not be so much. The issue of validity of the debt is implicit in the waiver issue. Schaper v. Derwinski, 1 Vet. App. 430, 434 (1991). Thus, in any waiver case, if a creation issue is raised, it must be addressed by the Agency of Original Jurisdiction (AOJ) before the Board can address whether a waiver is appropriate. This issue has not been considered by the AOJ in the first instance. Consequently, the Board must remand that issue to the AOJ for it to adjudicate the issue of whether the creation of the debt was valid, to include whether the amount of the debt is excessive. The matter is REMANDED for the following action: Adjudicate the issue of the validity of the overpayment, to include consideration as to whether the overpayment of $14,657.00 is excessive, considering the Veteran’s contentions in his VA Form 9. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow