Citation Nr: 18141436 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 13-09 089 DATE: October 10, 2018 REMANDED The question of whether the debt in the amount of $96,847 was properly created is remanded. The question of entitlement to waiver of an overpayment of VA pension benefits in the amount of $96,847 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1961 to October 1967. He additionally served a period of active duty for training (ACDUTRA) from March 1960 to August 1960. This case was previously before the Board of Veterans’ Appeals (Board) in February 2017, when it was remanded for an audit of the account to ascertain the exact amount of the debt. Unfortunately, not all of the requested development was accomplished and another remand is therefore required. Historically, the Veteran had a disabling stroke in 2004. VA pension benefits predicated upon his income and disability status were awarded in June 2004. The VA determined that the Veteran was not competent to handle the disbursement of funds at the same time. His son requested to be appointed as his fiduciary to handle his VA benefits in September 2004. The VA issued a certificate of legal capacity to receive and disburse benefits in favor of the Veteran’s son in the same month. The record contains multiple correspondences from VA to the son requesting additional documentation and better documentation as to the Veteran’s medical expenses and financial situation in general over the next few years. The Veteran’s son requested that another fiduciary be appointed to manage his father’s VA benefits. The record shows that in December 2007, the Probate Division of the Circuit Court of Cole County, Missouri, where the Veteran resides, appointed M.S., a Cole County Public Administrator as “guardian ad litem of the person and conservator ad litem” of the Veteran’s estate. In January 2008 the VA issued a second certificate of legal capacity to receive and disburse benefits on behalf of the Veteran in favor of the Cole County Public Administrator. M.S. continued to act as the Veteran’s conservator and VA fiduciary until March 2017 when M.S. retired and the newly-elected public administrator, J.L.K., was appointed as the Veteran’s conservator. J.L.K. provided notice of this change to VA in March 2017; however, VA has continued to address correspondence pertaining to the Veteran to M.S. Therefore, the first action which must be taken on remand is for the AOJ to provide copies of all correspondence which had been mailed to M.S. to J.L.K., and to update all systems to reflect J.L.K. as the Veteran’s current VA fiduciary. Because the original VA certificate of legal capacity was issued in favor of the Cole County Public Administrator, rather than an individual person, it remains valid in this situation. It would appear that this substantial debt was created through a series of events. The VA apparently under-counted interest and pension income the Veteran was getting, and overpaid for his home health care expenses for some time. It is entirely unclear from the evidence of record, however, how a debt of this magnitude was amassed. For these reasons, the Board previously remanded for an audit of the debt. Although the April 2018 Supplemental Statement of the Case, issued by the Milwaukee Pension Center, indicates that an audit of the overpayment and recoupment was completed and mailed along with a notification letter to the Conservator, no such audit or letter is included in the Veteran’s claims file, either in VA’s Caseflow or in the Legacy Content Manager. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Furthermore, the RO is required to fully complete the development ordered by the Board. Stegall v. West, 11 Vet. App. 268 (1998); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Implicit in the Board’s prior remand order is the necessity for a review of whether the creation of the debt is valid. For purposes of clarity, this aspect of the Veteran’s claim must be explicitly considered. No explicit adjudication as to whether the debt was validly created has occurred yet. In the analysis of a waiver of indebtedness case, VA must make an initial determination regarding whether the debt is valid before deciding whether a waiver of the debt is in order. Schaper v. Derwinski, 1 Vet. App. 430, 433-7 (1991). Regarding the creation of the debt, multiple letters from the Pension Management Center to the prior conservator request further documentation of the Veteran’s interest income and medical expenses for the years between 2004 and 2011. Further letters indicate that the information provided was incomplete. As noted in the letters, there is no time limit to submit income and expense information to reduce or eliminate an overpayment. Therefore, the current conservator should be given another opportunity to provide complete income and expense information, which if provided, could reduce the amount of the declared debt. After obtaining a copy of the prior audit and any additional information from the Veteran’s current conservator, the AOJ should render an explicit determination as to whether the declared debt was validly created. Waiver of the declared pension overpayment was denied because no request for a waiver was filed within the 180 days provided by statute for filing such a request. 38 U.S.C. §5302; 38 C.F.R. §1.963. Careful review of the file reveals the accuracy of this denial; in that the Veteran’s conservator did not request a waiver within 180 days of the December 2011 notice from the Debt Management Center. The conservator did respond to the letter within 180 days, however. In March 2012, M.S. submitted financial forms and medical expense reports, and requested that the VA take another look at the case. This statement was received by VA within the 180-day time limit, but mention was made of it in the waiver denial. Upon remand, the COWC should explicitly consider whether this correspondence could be considered equivalent to a waiver request under the circumstances. In this regard, we observe that it is the conservator who failed to request a timely waiver; however, it is the Veteran whose financial situation may be harmed, or has already been harmed since the debt has apparently been recouped already. A potentially relevant line of cases pertains to equitable tolling, which may be proper in a case where a Veteran filed an untimely appeal due to mental illness. In this latter instance, the Veteran must show that the failure to file was the direct result of a mental illness that rendered him incapable of “rational thought or deliberate decision making,” or “incapable of handling [his] own affairs or unable to function [in] society.” Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004). In this case, the Veteran was appointed a conservator with fiduciary responsibilities because he has been adjudicated incompetent. The COWC should explicitly consider these complications as well in their review of the timeliness question. It is important to clarify that the Veteran’s file contains evidence regarding two additional pension overpayment debts. The first debt, in the amount of $14,269 was waived by the COWC in a June 2011 decision, based on financial hardship. The debt at issue is the second debt created, and this remand pertains only to the second debt, in the declared amount of $96,847. A third debt in the amount of $95,034 was recently declared in March 2018. It does not appear that a challenge to the validity of this debt or a request for waiver have yet been filed. The matter is REMANDED for the following action: 1. RO should provide copies of all correspondence mailed to M.S. subsequent to March 2017 to J.L.K. 2. Invite the Veteran’s current conservator, J.L.K. to submit further documentation of the Veteran’s interest income and medical expenses for the years between 2004 and 2011. 3. Include a copy of the April 2018 audit and notice letter in the Veteran’s claims file. 4. If any new financial documentation is received, or if the April 2018 audit did not cover the following points, then another audit should be prepared. The audit must clearly show the amounts of money paid to the Veteran for each year at issue, and the amounts of money which were subsequently determined to be due to the Veteran each year, his estimated medical expenses and his actual medical expenses, as well as the pension ceiling limit (MAPR) for each year at issue. The sources for each figure used should be clearly identified to facilitate appellate review. The discrepancies between the paid figures and the due figures should be clearly explained. Lastly, the amount of money already recouped for payment of this debt should be clearly delineated. 5. The appropriate AOJ should then issue a determination on the validity of the creation of the debt, providing all appropriate notice to the Veteran, his fiduciary, and his representative. 6. If the debt, or any portion thereof, is deemed to have been validly created, the COWC should then address the question of timeliness again, taking into consideration the questions raised above regarding the conservator’s March 2012 communication, and the doctrine of equitable tolling. If a timely waiver is construed, then the debt should be reviewed under the standard of equity and good conscience providing all appropriate notice to the Veteran, his fiduciary, and his representative. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Harter