Citation Nr: 20000059 Decision Date: 01/02/20 Archive Date: 01/02/20 DOCKET NO. 14-20 848 DATE: January 2, 2020 REMANDED Entitlement to waiver of recovery of an overpayment of education benefits in the amount of $1,122.24, to include the question of whether the overpayment was properly created, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1978 to September 1979 and from May 1994 to February 2003. The Veteran has requested a waiver of an overpayment of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) education benefits in the amount of $1,122.24. This overpayment occurred when West Georgia Technical College (WGTC) certified that the Veteran was registered for the term January 8, 2013 through May 6, 2013. WGTC later informed VA that the Veteran never attended WGTC during that term. The Veteran asserts that although he visited WGTC to get more information, he decided to remain at Strayer University and he did not register for classes at WGTC. He maintains that WGTC committed an error when it submitted certification to VA showing that he had registered for the January 2013 term at WGTC. VA determined that the Veteran was not entitled to the Chapter 33 benefits that were awarded to him to pay for attendance at WGTC resulting in the overpayment of $1,122.24. On his October 2013 notice of disagreement (NOD), the Veteran asserted that he was at Strayer University full time during the time period of the calculated overpayment and that he was entitled to all educational benefits received during that time period due to his attendance at Strayer. As such, the Veteran has challenged the validity of the debt. When the validity of the debt is challenged, a threshold determination must be made on that question prior to a decision on the waiver of indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430 (1991). 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. See 38 C.F.R. § 1.911 (c) (1); see also VAOPGCPREC 6-98. The propriety and amount of the overpayment at issue are matters that are integral to a waiver determination. See Schaper, 1 Vet. App. at 434. The question of whether the overpayment at issue in this appeal has been properly created and assessed against the Veteran has not been developed or adjudicated by the RO. Thus, a remand for this purpose is required in this case. The issue has been recharacterized above to encompass the question of validity of the overpayment. In support of his claim for a waiver of the overpayment, the Veteran submitted a financial status report (FSR) in June 2013. This FSR indicated that the Veteran’s household income was slightly higher than his household expenses. On May 8, 2014, subsequent to the May 2, 2014 statement of the case (SOC) and prior to certification of the Veteran’s claim to the Board, the Veteran submitted an updated FSR showing that his monthly household expenses were greater than his monthly household income. On remand the agency of original jurisdiction (AOJ) will be able to consider this new evidence and issue a supplemental statement of the case on remand. The matters are REMANDED for the following action: 1. Adjudicate the issue of whether the overpayment of benefits at issue was properly created, including consideration of whether the overpayment was due to sole VA administrative error, in part or in whole, and the amount of any overpayment. A comprehensive explanation of the reasons and bases for that decision should be prepared and incorporated into the claims file. If it is determined that any or all of the overpayment at issue was improperly created, award action should be taken to rectify the error. 2. Thereafter, if an overpayment is found to have been properly created, the Veteran should be allowed an opportunity to submit additional evidence pertinent to the Veteran’s request for waiver of recovery of the assessed overpayment, including a complete financial status report, citing all current income, expenses, and assets. (CONTINUED ON NEXT PAGE) 3. After the actions requested above have been completed, the case should be referred to the Committee on Waivers and Compromises (Committee) to review the record and reconsider the Veteran’s request for waiver pursuant to the principals of equity and good conscience. If the decision remains adverse to the Veteran, the agency of original jurisdiction should issue to the Veteran a supplemental statement of the case (SSOC) which accurately reflects the reasons for the decision. The SSOC should also include the pertinent laws and regulations, to include 38 U.S.C. § 5302 and 38 C.F.R. §§ 1.962, 1.963,1.965, and a discussion of each of the elements of equity and good conscience, if appropriate. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, Counsel 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.