Citation Nr: 20002334 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 14-25 391A DATE: January 10, 2020 REMANDED The claim of entitlement to waiver of recovery of an overpayment of National Services Life Insurance (NSLI) proceeds in the amount of $8,175.34 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1944 to January 1949. He died in September 2010. The appellant in this appeal is the Veteran’s daughter. This appeal before the Board of Veterans’ Appeals (Board) arose from a September 2013 decision in which he Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania informed the appellant that the Committee of Waivers and Compromises (COWC) had denied her request for waiver of indebtedness in the amount of $8,175.34. The appellant disagreed with that determination and this appeal ensued. The Board notes that on her July 2014 substantive appeal (filed via a VA Form 9, Appeal to Board of Veterans’ Appeals), the appellant checked the box indicating her desire for a Board videoconference hearing before a Veterans Law Judge. The requested hearing was scheduled for August 19, 2019, but the appellant failed to report for the scheduled hearing. As the record does not reflect that the appellant has either explained her failure to report, or requested rescheduling of the hearing, the Board will proceed as though her hearing request has been withdrawn. See 38 C.F.R. § 20.704(d). Waiver Request A review of the record shows that the Veteran had in effect during his lifetime an NSLI policy. In November 1952, the Veteran signed a Designation of Beneficiary form listing his wife as the principal beneficiary of the policy and all surviving children born to him and his wife as contingent beneficiaries. The record then contains a second Designation of Beneficiary form dated in January 2001, purportedly signed by the Veteran, wherein the Veteran listed his wife as the principal beneficiary and his daughter M.F., the appellant in this case, as the sole contingent beneficiary. The Veteran died in September 2010; he was predeceased by his wife. In October 2010, based on the January 2001 Designation of Beneficiary, VA paid to the appellant the proceeds of the Veteran’s NSLI policy in the amount of $10,219.17. Apparently, sometime thereafter, the appellant’s brother contested the validity of the 2001 beneficiary designation and the RO initiated an investigation concerning whether the 2001 Designation of Beneficiary form was valid. In April 2013, VA informed the appellant that a forensic expert had determined that the 2001 beneficiary designation was not valid and that she had been overpaid in the amount of $8,175.34, which represents that total amount payable, in equal shares, to the Veteran’s four other surviving children. The appellant thereafter requested a waiver of recovery of the overpayment of the NSLI policy proceeds. Concerning whether the appellant may be entitled to a waiver of recovery of the overpayment, the law provides that recovery of an overpayment may be waived if there is no indication of fraud, misrepresentation, or bad faith, on the part of the person or the persons having an interest in obtaining the waiver, and recovery of such indebtedness would be against equity and good conscience. See 38 U.S.C. § 5302(c); 38 C.F.R. §§ 1.962, 1.963. In the absence of fraud, misrepresentation, or bad faith, consideration will be given to whether recovery of the overpayment would be against equity and good conscience. The standard “equity and good conscience” will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the Government’s rights. In making this determination, consideration will be given to the following elements, which are not intended to be all-inclusive: (1) the fault of the debtor, (2) balancing of faults between the debtor and the VA, (3) undue hardship of collection on the debtor, (4) whether collection would defeat the purpose of an existing benefit, (5) whether failure to collect a debt would result in the unjust enrichment of the debtor, and (6) whether the debtor changed positions to his or her detriment in reliance upon a granted VA benefit. 38 U.S.C. § 5302; 38 C.F.R. § 1.965(a); see Ridings v. Brown, 6 Vet. App. 544, 546 (1994). In the instant case, in a September 2013 letter from the RO, the appellant was informed that the COWC had denied her request for waiver of recovery of her debt in the amount of $8,175.34. Notably, the RO stated that “[t]he overpayment was created because the designation of beneficiary form signed on January 17, 2001 naming [the appellant] as sole contingent beneficiary was found to be fraudulent and forged.” It was further indicated that upon review of the evidence of record, the COWC had “resolved the factor of fault in [the appellant’s] favor.” Unfortunately, the COWC’s decision itself is not of record. Furthermore, none of the records pertaining to the investigation concerning the validity of the 2001 beneficiary designation, to include any findings or conclusions reached by the forensic expert, are not of record. The Board finds that these records are relevant to the matter currently before it, as they may contain information that tends to prove or disprove any element relevant to whether a waiver may be granted in this case, to include whether fraud exists. Accordingly, as it would appear that there exists potentially relevant records that have not been associated with the claims file, a remand of the matter is necessary for the agency of original jurisdiction (AOJ) to ensure that all relevant records are associated with the record and made available for review by the Board so that the Board’s evaluation of the Veteran’s claim will be a fully informed one. See 38 U.S.C. § 5103A (b)(1) (setting forth VA’s duty to obtain relevant records); Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010) (defining relevant records as “those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim”); see also 38 C.F.R. § 19.7 (decisions of the Board are based on a review of the entire record). While the matter is on remand, to ensure that the record is complete, the AOJ should also give the appellant another opportunity to provide additional information and/or evidence pertinent to the appeal, explaining that she has a full one-year period to respond. See 38 U.S.C. § 5103 (b)(1). But see 38 U.S.C. § 5103 (b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other action deemed warranted prior to adjudicating the matter on appeal. The matter is hereby REMANDED for the following action: 1. Associate with the claims file all relevant documents related to the appellant’s request for waiver of recovery of indebtedness, to specifically include all adjudicatory documents from the COWC, as well as all records related to the investigation concerning the validity of the January 2001 Designation of Beneficiary form. All findings made by the forensic expert, to specifically include any findings of fraud, must be associated with the record.’ 2. Send to the appellant a letter requesting that she provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159 . All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. (Continued on the next page) 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the issue of entitlement to waiver of recovery of an overpayment of NSLI policy proceeds, considering of all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication of the claim) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.