Citation Nr: 18156935
Decision Date: 12/11/18	Archive Date: 12/11/18

DOCKET NO. 15-40 197
DATE:	December 11, 2018
REMANDED
Whether an overpayment of VA compensation benefits in the amount of $31,216.87 was properly created is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the U.S. Air Force from May 1986 to September 1986 and in the U.S. Army from February 1987 to March 2007. 
The Veteran appeals the validity of debt in the amount of 31,216.87 overpaid to him due to incarceration. The Veteran was incarcerated from April 2012 to September 2013. He argues that the withholding of his VA disability benefits during his period of incarceration is in error because his wife submitted a timely claim for appointment soon after he self-surrendered to the federal authorities.
Review of the evidence of record discloses that in December 2011 the Veteran called to start a claim for apportionment of his benefits.  In January 2012, a letter was sent to the Veteran regarding his request for an apportionment of VA benefits.  The Veteran was instructed to have his dependents who he wished to claim for apportionment to complete and return the VA Form 21-4138, Statement in Support of Claim, for consideration. In April 2012, the RO received a completed VA Form 21-4138 from the Veteran’s wife. 
In the October 2015 Statement of the Case, the RO noted that in May 2013 it received a call from Texas Veteran’s Commission (TVC) stating that the “appointment is not needed at this time.”  Therefore, no action was taken on the claim for appointment. The Board notes, however, that in the October 2015 deferred rating the RO noted that TVC was neither the Veteran’s nor his spouses POA. They also indicated that the Veteran’s spouse request for apportionment was never acted on. As the Board is unclear as to why the request for apportionment was never acted on, a remand is warranted to afford the RO the opportunity to adjudicate whether there was administrative error in the creation of the debt.
The Board also notes that in the March 2014 correspondence to the Veteran it was stated that entitlement to compensation and pension benefits had changed which resulted in the overpayment of $31,216.87. The other correspondence of record, however, attributes the overpayment to issues with the Veteran’s incarceration. On remand, this inconsistency should be addressed.  
The matter is REMANDED for the following action:
1. Adjudicate whether there was administrative error that resulted in an overpayment in the amount of $31,216.87 to the Veteran.  In doing so, the RO must clearly set out the details of the overpayment. Any delay in action taken in stopping payments should be set out in detail.



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2. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the appeal is returned to the Board.


 
T. MAINELLI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T.S. Willie