Citation Nr: 20002247
Decision Date: 01/10/20	Archive Date: 01/09/20

DOCKET NO. 18-10 390
DATE: January 10, 2020

REMANDED

Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $40,634.76, to include the question of whether the overpayment was properly created is remanded.

REASONS FOR REMAND

The Board of Veterans’ Appeals (Board) previously remanded this case in November 2019 for consideration of the issue of whether the overpayment was properly created taking into consideration the contention of sole VA error.  This action was not undertaken.

The Board noted the following.  The Veteran applied for benefits while he was on Active Guard Reserve (AGR) duty under Title 32 of the United States Code in April 2014.  See April 2014 Veteran’s Fully Developed Claim (FDC).  The FDC form only asked whether the Veteran was active under Title 10 orders, not title 32.  The RO obtained the Veteran’s personnel records in August 2014, reflecting that he was “presently” AGR under Title 32.  See August 2014 Defense Personnel Records Information Retrieval System (DPRIS) Response.  The RO then granted benefits and notified the Veteran.  One week letter the Veteran notified VA that he was on active duty, should not be receiving payment, and asked that his benefits be discontinued.  See February 2015 Report of General Information; February 2015 Correspondence.  The Veteran notified VA again in July 2015 by providing a copy of his orders.  See July 2015 Correspondence.  The Veteran notified VA again in October 2015 and asked that his benefits be stopped.  See October 2015 Third Party Correspondence.  About two years later, the Regional Office (RO) terminated the benefits payment retroactively which resulted in the overpayment.  See May 2017 Notification Letter.  A July 2017 Debt Management Center (DMC) first demand letter explained that his debt was $40,634.76.  See July 2017 DMC- First Demand Letter.  The Veteran returned a VA Form 5655, Financial Status Report, as a request for waiver of the overpayment debt, which was considered and denied in the November 2017 decision on appeal by the Committee on Waivers and Compromises.  See November 2017 Waiver Decision.  However, as noted, the Board found that sole VA error was raised and must be addressed prior to the waiver matter.  See 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”).  

In light of the foregoing, further action is necessary in this case, in accordance with the previous Board remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders).

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The matters are REMANDED for the following action:

Adjudicate the issue of whether the overpayment was properly created, to include the raised matter of sole administrative error.  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

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.