Citation Nr: 18157405
Decision Date: 12/12/18	Archive Date: 12/12/18

DOCKET NO. 17-64 908
DATE:	December 12, 2018
REMANDED
Entitlement to waiver of an overpayment debt in the amount of $4,070.09 resulting from erroneous payment to the Veteran of Equal Access to Justice Act (EAJA) attorney fees is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1987 to January 1991.
In March 2016, the Board of Veterans’ Appeals (Board) remanded this case.  It was noted that the matter before the Board initially arose from a payment of $4,070.09 that was erroneously sent to the Veteran in February 2009.  The payment should actually have been made to the Veteran’s then-current attorney under the Equal Access to Justice Act (EAJA).  Although the Veteran had questioned how the debt was created, he did not perfect his appeal as to this matter and the Board determined that the issue of the validity of the debt was no longer before the Board.  However, the Board noted that the issue of entitlement to waiver of the recovery of the overpayment required a remand.  
The Board determined that the Committee on Waivers and Compromises (COWC) should clarify whether a request for waiver of indebtedness was timely received; schedule the Veteran for a hearing in support of his claim for waiver of overpayment unless it could be demonstrated that he failed without good cause to appear at the hearing scheduled on January 18, 2011; and if waiver of overpayment debt was denied, whether for untimely filing or on the merits, issue a statement of the case (SOC).
The Veteran was subsequently scheduled for a hearing, but it was cancelled.  In the interim, other unrelated matters were addressed by a Department of Veterans Affairs (VA) Regional Office (RO) and the Board; however; it does not appear that there was any action performed by the COWC as was requested.  Thus, because the requirements of the Board’s remand were not substantially complied with the case must be returned to the RO at this point.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order; and where the remand orders were not complied with the Board must remand back to RO for further development).
The matter is REMANDED for the following action:






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Clarify with the COWC whether a request for waiver of indebtedness was timely received.  If so, the claim should be considered on the merits.  If waiver of overpayment debt is denied, whether for untimely filing or on the merits, issue an SOC and afford an opportunity to respond.  This issue should only be returned to the Board if the Veteran submits a timely Substantive Appeal.

 
S. L. Kennedy
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Connolly, Counsel