Citation Nr: 18155099 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-32 881 DATE: December 4, 2018 REMANDED Whether the amount of debt collected from the Veteran's non-service-connected disability pension benefits was proper is remanded. REASONS FOR REMAND The Veteran had honorable active military service from January 1971 to January 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared and testified at a hearing held in September 2013 before a Decision Review Officer (DRO) and an observer who was also from VA and there to assist the DRO to explain the pension system to the Veteran. The transcript is associated with his claims file. Although the Veteran initially requested a hearing before the Board, he did not specify what type of hearing and was sent a letter to clarify this. In his June 2015 response, he withdrew his hearing request. Thus, the Board is not required to provide the Veteran a hearing before adjudicating his appeal. Whether the amount of debt collected from the Veteran’s non-service-connected disability pension benefits was proper During his September 2013 DRO hearing, the Veteran testified he feels he has been overcharged on paying off the debt he owes VA because he believes he has submitted sufficient medical expenses so that his reimbursement for those when applied toward the overpayment should have been sufficient to repay the debt. Significantly, he contends that VA has not considered all of his medical expenses that he reported. He also contends that his pension benefits are being calculated improperly because he cannot figure out how they were calculated from the numbers that were given to him from the letters he received, and nobody has been able to explain it to him. In addition, it appears the Veteran contends that the RO failed to apply the retroactive award from the September 2012 increase in his pension benefits to the debt he owes VA, or at least he does not know whether VA did but he believes it should have been. He has stated that he did not receive that payment. Finally, despite stating by the end of his hearing that he now understood how his pension benefits were calculated, he still questioned the validity of the calculations because he did not have anything down on paper. Therefore, the Board finds the issue on appeal includes the propriety of the calculation of the Veteran’s non-service-connected disability pension benefits in the September 2012 decision letter and thereafter, as well as the question of the propriety of the withholding applied towards the Veteran’s debt, to include what happened to the retroactive benefits. A brief statement of facts will be beneficial in understanding this case. The Veteran was initially awarded non-service-connected disability pension benefits effective August 25, 1982, which was later adjusted to February 21, 1982. However, his benefits were terminated due to excessive income in an April 19, 1985 notification letter effective February 1, 1984, which action resulted in an overpayment of $4,978.33. In addition, in a July 1985 rating decision, the Veteran’s entitlement to non-service-connected disability pension was discontinued based on a finding of clear and unmistakable error in the initial grant of benefits because it was determined that the disabilities upon which the grant was made were the result of the Veteran’s own willful misconduct. In March 2011, the Veteran filed again for entitlement to non-service-connected disability pension. In a December 15, 2011 notification letter, entitlement to non-service-connected disability pension benefits was granted effective April 1, 2011 solely on the basis that the Veteran is in receipt of Social Security disability benefits. Thereafter, in February 2012, the Veteran submitted an Eligibility Verification Report and a Medical Expense Report (MER) identifying unreimbursed medical expenses from March 2011 through February 2012. In May 2012, he also advised VA that he was required to start paying his Medicare insurance premium in April 2012. By a September 2012 notification letter, the Veteran was awarded an increase in his non-service-connected disability pension benefits effective April 1, 2011 essentially based upon his report of unreimbursed medical expenses. In addition, in a May 2012 notification letter, the Veteran was advised that the debt created in 1985 in the amount of $4,978.33 was still outstanding and that VA would begin recouping that debt by withholding his VA benefits in August 2012. Beginning in August 2012, VA began withholding $65.00 from the Veteran’s monthly non-service-connected disability pension benefits, which at that time represented the entirety of his monthly payment. In December 2012, the Veteran filed three MERs which covered the periods of March 2011 through December 2011, January 2012 to March 2012 and April 2012 to December 2012. In January 2013, the Veteran filed his Notice of Disagreement against the September 2012 decision. In May and September 2013, the Veteran submitted MERs for the periods of January 2013 to March 2013 and April 2013 to June 2013, respectively. In September 2013, he testified at a hearing at the RO with a DRO and another VA employee. In February 2014, the Veteran submitted a MER for the period of July 2013 to December 2013. In an April 2014 Notification Letter, the RO amended the Veteran’s non-service-connected disability pension benefits based on MERs the Veteran submitted in September and December 2013. Thereafter, the DRO issued a Statement of the Case in June 2014, and the Veteran perfected an appeal in September 2014. It is noted that the Veteran was awarded an extension of time to submit his VA Form 9 and, therefore, his substantive appeal is not untimely. After reviewing the claims file, the Board finds that remand is necessary because it appears that the Veteran’s new MERs submitted in December 2012 and May 2013 have never been adjudicated. At the September 2013 DRO hearing, the Veteran took exception with the fact that the RO has not considered all five of the MERs that he had filed and asked that the RO start again and readjudicate everything. The Board finds that he is correct. The September 2012 decision used the February 2012 MER that only reported medical expenses from March 2011 to February 2012. The April 2014 decision used the MERs submitted in September and December 2013. The Board could not find a decision that adjudicated the MERs submitted in December 2012 and May 2013. It is noted that the December 2012 MERs for the periods of March 2011 through December 2011 and January 2012 to March 2012 amended the MER submitted in February 2012. However, the MER for April 2012 to December 2012 reports new expenses, as well does the May 2013 MER. There does not appear to be any timeliness issue with the submission of these MERs. Therefore, the Board finds that remand is necessary for the RO to readjudicate the Veteran’s non-service-connected disability pension benefits based on the December 2012 and May 2013 MERs submitted by the Veteran. Furthermore, the Board finds that, on remand, a new audit should be obtained to determine what payments have been applied to the Veteran’s debt. The Veteran has questioned what happened to the retroactive payment that resulted from the September 2012 decision that increased his benefits back to April 2011. He has stated he never received any money and he has never been told what happened to that payment. An audit was performed in September 2013 after the Veteran’s hearing that shows $537.00 was applied to his debt in September 2012. However, the retroactive payment was supposed to be $570.00. See VETSNET Award Print. Thus, although it appears most of the retroactive payment was applied to the debt, there is a question remaining as to what happened to the remaining $33.00. Moreover, the April 2014 decision should have resulted in a retroactive payment that should have been applied to the debt as well. However, since this was after the audit already done, there is nothing to show what happened to this payment. Thus, a new audit would be beneficial to help clarify these questions. Plus, as it does not appear that the September 2013 audit was provided to the Veteran, he should be provided with a copy of the audit with a letter of explanation to help him understand how the funds withheld from his pension benefits were applied toward his debt. The matter is REMANDED for the following action: 1. Request an audit of the Veteran’s withholding of his non-service-connected disability pension benefits and how it was applied to his VA debt. Upon completion, the audit should be sent to the Veteran with a letter explaining how the monies withheld were applied to pay down his VA debt. 2. Adjudicate the MERs submitted by the Veteran in December 2012 and May 2013 in the first instance and adjust his non-service-connected disability pension   benefits accordingly. Provide the Veteran with a letter showing detailed calculations of his pension benefits with clear explanations of the decisions made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow