Citation Nr: 18152089 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-19 483 DATE: November 20, 2018 REMANDED The issue of entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) Veterans Retraining Assistance Program (VRAP) benefits in the amount of $7,635.73 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to August 1985. In September 2015, the Veteran testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned. A transcript of the hearing is associated with the record. The Veteran’s overpayment debt is due to a change in student enrollment status while in receipt of VRAP benefits during his spring 2014 semester term at Baltimore City Community College. See Pub. L. No. 112-56, § 211, 125 Stat. 712 -715 (Nov. 21, 2011) (VRAP directed VA, in cooperation with the Department of Labor (DOL), to pay for up to 12 months of a retraining assistance in a “high demand” occupation for unemployed eligible veterans between the ages of 35 and 60 as determined by DOL and VA). The Board finds the Veteran has raised the issue of whether the debt was properly created. 38 C.F.R. § 1.911(c)(1) (a debtor may dispute the amount or existence of a debt, which is a right that may be exercised separately from a request for waiver or at the same time). Resolution of the creation issue must precede consideration of the waiver issue. Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991) (“when a Veteran raises the validity of the debt as part of a waiver application... it is arbitrary and capricious and an abuse of discretion to adjudicate the waiver application without first deciding a veteran’s challenge to the lawfulness of the debt asserted against him or her”); VAOPGCPREC 6-98 (July 24, 1998) (holding that when a veteran challenges the validity of the debt and seeks waiver of the debt, the [RO] must first fully review the debt’s validity and, if the office believes the debt to be valid, prepare a written decision fully justifying the validity of the debt before referring the waiver request to the Committee on Waivers and Compromises (COWC)). An overpayment debt was created in the amount of $7,635.73 due to a notice of a change in his student status based on a reduction of his coursework after a class was cancelled by the school. The Veteran has contested the validity of the overpayment debt and testified that mitigating circumstances are demonstrated that prevented him from pursuing the full-time course load required for entitlement to his VRAP benefits during the 2014 spring semester. Specifically, he reports that he was repeatedly advised by the college’s veterans’ representative that a winter course counted towards his full-time enrollment in the spring semester. See 38 C.F.R. §§ 21.4135, 21.4136, 21.7135. He explained that he offered to enroll in an additional class when one of his courses was cancelled but was reassured that he did not need to do so. In support of his claim, the Veteran submitted an official transcript that indicated he completed one 3-credit course in January 2014 and three 3-credit courses during the spring 2014 semester. Based on the above, further appellate review by the Board on the Veteran’s waiver claim must be deferred pending adjudication of a threshold determination on the propriety of the creation of the debt. 38 C.F.R. § 1.911(c)(1). The matter is REMANDED for the following actions: 1. Adjudicate the issue of whether the overpayment of VRAP benefits in the amount of $7,635.73 was properly created. The Veteran is to be advised that a timely notice of disagreement and substantive appeal must be filed in order to perfect an appeal on the issue of whether the overpayment debt in the amount of $7,635.73 was properly created. 38 C.F.R. § 20.302(a)-(b). Only if the appeal is timely perfected is the issue to be returned to the Board. (Continued on the next page)   2. Then, after the issue regarding whether the overpayment was properly created is resolved to the Veteran’s satisfaction, perfected on appeal, or finally denied, the record should again be reviewed and the AOJ should readjudicate the issue of waiver of the overpayment debt in the amount of $7,635.73. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond.] MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Counsel