Citation Nr: 18160049
Decision Date: 12/21/18	Archive Date: 12/20/18

DOCKET NO. 16-06 872
DATE:	December 21, 2018
REMANDED
1. Whether the overpayment of Department of Veterans Affairs (VA) additional compensation benefits in the amount of $11,789.09 was properly created is remanded.
2. Entitlement to waiver of recovery of an overpayment of VA additional compensation benefits in the amount of $11,789.09 is remanded.
REASONS FOR REMAND
In this case, the Veteran has challenged the proper creation of the debt with regard to the amount of the debt.  The debt was created when the Veteran did not promptly report the death of his spouse when he was receiving additional compensation benefits for her as a dependent.  He maintains that after he did notify VA, there was a delay in the removal of his spouse so the amount of the debt is wrong.  As such further appellate review by the Board of Veterans’ Appeals (Board) on the Veteran’s waiver claim must be deferred pending formal adjudication of his challenge to the validity of the debt in the full amount of $11,789.09.  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 [Regional Office] 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).  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.  38 C.F.R. § 1.911 (c)(1).  Resolution of the creation issue must precede consideration of the waiver issue. 
The matter is REMANDED for the following action:
Adjudicate the issue of whether the overpayment was properly created in the amount of $11,789.09.  If the claim continues to be denied, including on this basis, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC) which addresses both the creation and waiver issues, and afford them the opportunity to respond. 
 
S. L. Kennedy
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Connolly, Counsel