Citation Nr: 18142160 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 15-06 272A DATE: October 16, 2018 REMANDED Whether an overpayment of Department of Veterans Affairs (VA) Veterans Retraining Assistance Program (VRAP) educational benefits in the amount of $3,790.40 was properly created is remanded. The issue of entitlement to waiver of recovery of an overpayment of VRAP educational benefits in the amount of $3,790.40 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1980 to October 1983. In November 2017, the Veteran testified at a Board of Veterans’ Appeals (Board) hearing before a Veterans Law Judge (VLJ) that is no longer employed at the Board. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707 (VLJs who conduct hearings must participate in making the final determination of the claim on appeal.). The Veteran was notified that she had a right to a new hearing and reported that she did not wish to appear at an additional hearing in a February 2018 letter. As such, the Board will proceed to consider the appeal based on the evidence of record. VA recognized statements from the Veteran made in a March 2015 VA Form 9 as representing a notice of disagreement with a May 2014 award letter which determined the amount of debt created by an overpayment of VRAP education benefits. Essentially, the Veteran challenged the validity of the debt. In response, VA issued a Supplemental Statement of the Case. However, in no case will a Supplemental Statement of the Case be used to announce decisions by the Agency of Original Jurisdiction (AOJ) on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case. 38 C.F.R. § 19.31(a). Thus, the issue of validity of the debt must be remanded so that a Statement of the Case can be issued. See 38 C.F.R. §§ 19.29, 20.200. When the validity issue is next considered by the AOJ, consideration should be given to the Veteran’s statement in the March 2015 VA Form 9, the February 2014 and March 2014 VA Forms 22-1999b, and the November 1, 2013 Compliance Survey Referral. The Board notes that while the Compliance Survey Referral indicates the date of the Survey was November 1, 2013 this is clearly in error as events occurring after that date are addressed in the survey. It is noted that in the March 2015 VA Form 9 the Veteran reported that a personal disagreement caused the owner of the school she was attending to submit a false VA Form 22-1999b indicating that the Veteran had been dropped from her program. In support of her claim, the Veteran submitted an article reporting the school since closed due to violations of state guidelines and buddy statements noting her consistent attendance in cosmetology school and general character. The record also includes a February 2014 VA Form 22-1999b reporting that the Veteran was dropped from the school November 1, 2013, and a March 2014 VA Form 22-1999b stating that the Veteran was still enrolled and that a mistake was made and submitted in error. The Compliance Survey Referral indicates the Veteran last attended the school at issue on November 21, 2013 without explanation as to the basis for that finding. Further appellate review by the Board on the Veteran’s waiver claim must be deferred pending formal adjudication of the threshold determination on the propriety of the creation of the debt. Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991); VAOPGCPREC 6-98 (July 24, 1998). The matter is REMANDED for the following actions: 1. Issue a Statement of the Case addressing the issue of whether the overpayment of VRAP educational benefits in the amount of $3,790.40 was properly created. Consideration should be given to the Veteran’s statement in the March 2015 VA Form 9, the February 2014 and March 2014 VA Forms 22-1999b, and the Compliance Survey Referral, all of which are discussed above. 2. After the issue regarding whether the overpayment was properly created is resolved to the Veteran’s satisfaction, perfected on appeal, or finally denied, issue a Supplemental Statement of the Case that addresses the waiver issue if appropriate (i.e., if the debt is still found to be valid). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Counsel