Citation Nr: 19192044 Decision Date: 12/06/19 Archive Date: 12/06/19 DOCKET NO. 19-16 324 DATE: December 6, 2019 REMANDED The issue of entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits due to concurrent payment of Dependents’ Educational Assistance (DEA) Chapter 35 education benefits from January 2016 to July 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1982 to January 1989 and from March 2001 to May 2013, with service in Southwest Asia. He received a Bronze Star Medal, among other awards and decorations. As explained below, the Board of Veterans’ Appeals (Board) finds the Veteran has raised the issue of the proper creation of the debt, to include the matter of sole administrative error. See 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). The Veteran was advised in a January 2015 letter that his compensation award was adjusted to include an additional amount for a school child, S.M.N., effective September 2014. See 38 C.F.R. § 3.4(b)(2). Thereafter, eligibility for DEA benefits was established effective October 2015 in a December 2015 rating decision. See 38 C.F.R. § 3.807(a)(2). In January 2016, a Chapter 35 notification was associated with the record to reflect that S.M.N. elected DEA education benefits. A November 2017 VA notification letter informed the Veteran of a proposal to reduce his compensation benefits due to S.M.N.’s election of Chapter 35 DEA education benefits. See 38 C.F.R. § 21.3023(a)(1) (an election of educational assistance is a bar to increased rates of compensation on account of the child based on school attendance). A July 2018 notification letter advised the Veteran that S.M.N. was removed as a dependent from his compensation benefits award, effective January 2016, and that such action generated an overpayment. The July 2018 first demand letter from the Debt Management Center (DMC) assessed an overpayment in the amount of $7,433.05. The Veteran requested waiver of the overpayment debt; he has contended that he did not provide false information to VA regarding S.M.N.’s receipt of DEA education benefits and that indicated that he was unaware that his daughter could not receive educational benefits. In his December 2018 notice of disagreement with the November 2018 decision on waiver of indebtedness on appeal, he also contended that VA properly adjusted his monthly benefit award and that he did not believe he needed to report changes to VA because VA was aware that his dependents were in receipt of Chapter 35 DEA education benefits. A June 2019 VA Form 9 continued the Veteran’s assertions that he was not aware of his responsibility to ensure VA removed S.M.N. from his compensation award nor that DEA education benefits could not be concurrently received with dependency benefits; he also reported that a January 2016 letter from VA informed him that S.M.N. was removed as a dependent child due to her election of DEA education benefits and that the failure to actually remove her from his award was the fault of VA. The Veteran’s representative reiterated the contentions in an informal hearing presentation that VA was aware S.M.N. was in receipt of DEA education benefits and adjusted the compensation award accordingly such that no overpayment was created and that any delay in adjustment was due to VA’s failure to act. Based on the above, the Board construes the Veteran’s statements as a disagreement with whether such overpayment debt was validly created in the July 2018 demand letter. See 38 C.F.R. § 1.911(c)(1); see also VAOPGCPREC 2-90 (July 17, 1989). The Board notes that a May 2019 decision by the Committee on Waivers and Compromises (COWC) partially granted the Veteran’s claim for waiver in the amount of $3,716.53 and continued the denial of a waiver for the remaining amount of $3,716.52. Nevertheless, further appellate review by the Board on the Veteran’s remaining waiver claim must be deferred pending formal adjudication of a threshold determination on the propriety of the creation of the debt. 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). The matter is REMANDED for the following action: Adjudicate the issue of whether the overpayment was properly created, to include the raised matter of sole administrative error. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Odya-Weis The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.