Citation Nr: 20004012 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 13-31 179 DATE: January 16, 2020 REMANDED Entitlement to waiver of overpayment of VA pension benefits created prior to March 12, 2012 is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1973 to October 1975. In January 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In June 2015, the Board granted entitlement to a waiver of recovery of the overpayment of VA pension benefits created after March 12, 2012 and remanded his request for a waiver of VA pension benefits created prior to that date for evidentiary development. In May 2019, the Board remanded the Veteran’s appeal for additional evidentiary development. It has since been returned to the Board for further consideration.   Entitlement to waiver of overpayment of VA pension benefits created prior to March 12, 2012 is remanded. A review of the record reveals that a remand is necessary to ensure substantial compliance with the Board’s previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed above, the Board’s June 2015 decision granted entitlement to a waiver of recovery of the overpayment of VA pension benefits created after March 12, 2012 and remanded his request for a waiver of VA pension benefits created prior to that date. The Board’s May 2019 remand directed the Agency of Original Jurisdiction (AOJ) to implement its previous decision by calculating the exact dollar amount for the period after March 12, 2012. The Board observes that some of its remand directives were accomplished. Here, the Debt Management Center complied with the Board’s May 2019 remand and waived $11,542.77 of the $75,940.00 overpayment, which was calculated to be the amount of debt created for the period of March 12, 2012 to November 30, 2012. According to the September 2019 Supplemental Statement of the Case (SSOC), the Veteran’s overpayment for the period prior to March 12, 2012 is $64,397.23, which remains denied and the current balance is $45,274.68. The Board further observes that in July 2019, VA notified the Veteran and requested that he complete a VA Form 5655, Financial Status Report, prior to September 6, 2019. The record reveals that the Veteran submitted his VA Form 5655, which was received by VA on the deadline of September 6, 2019. Curiously, the September 2019 SSOC includes a paragraph stating that the Veteran did not submit an updated VA Form 5655 and that no new or material evidence had been presented to reverse the initial decision affirming the denial of the waiver. In other words, the AOJ did not consider evidence submitted by the Veteran that may have bearing on and be pertinent to his appeal. As such, the claim is remanded to the AOJ in order to consider the Veteran’s completed VA Form 5655 dated September 6, 2019 in the first instance. Moreover, it does not appear that the Veteran was properly notified of the steps taken to calculate the total amount he owed. Additionally, in a recent Informal Hearing Presentation (IHP), the Veteran and his representative requested additional clarification as to the amount he still owes as well as how VA determined his income levels in the years prior to March 12, 2012. The matters are REMANDED for the following action: 1. The AOJ must review and consider the Veteran’s completed VA Form 5655 dated September 6, 2019 in the first instance. If a more recent form is required, the Veteran should be advised. 2. The AOJ should also conduct any other development necessary to verify and clarify the Veteran’s countable income for the years from 2008 to 2012. The Veteran must be notified of the steps taken to calculate the dollar amounts and should be advised of any steps he needs to complete, as necessary. Information concerning the income used should be clearly set out. 3. After the development requested above has been completed, the AOJ should then readjudicate the Veteran’s request for a waiver of overpayment of pension benefits created prior to March 12, 2012, based on the   entirety of the evidence. If the benefits sought on appeal are not granted to the appellant’s satisfaction, he and his representative should be provided with an SSOC. An appropriate period of time should be allowed for response. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, Associate 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.