Citation Nr: 20006743 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 19-07 369 DATE: January 28, 2020 REMANDED The issue of waiver of recovery of an overpayment of Department of Veterans Affairs (VA) pension benefits in the amount of $7,869.87 due to an apportionment of VA benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1974 to November 1976 and from February 1977 to May 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from July 2018 administrative decision of the Department of Veterans Affairs (VA) Committee on Waivers and Compromises (Committee). Waiver of $7,869.87 As explained below, the Board finds the Veteran has raised the issue of the proper creation of the debt. Resolution of the creation issue must precede consideration of the waiver issue and must include consideration as to whether the Veteran was either legally entitled to the benefits in question. 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). 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. 38 C.F.R. § 1.911(c)(1). The Veteran’s overpayment debt subject to his appealed request for waiver is due to a grant of an apportionment of his VA pension benefits. The Veteran was convicted of kidnapping and traveling with the intent to engage in a sexual act with a juvenile, whom the Veteran refers to in his writings as his wife. See June 2019 Web/HTML Documents. This person and their multiple children were granted an apportionment of the Veteran’s pension benefits, effective January 2018. See April 2018 Apportionment Decision. A Debt Management Center first demand letter explained that withholding for an amount of $7,869.87 would begin August 2018. See May 2018 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 July 2018 decision on appeal by the Committee. The Representative, in their appellate brief, challenged the validity of the creation of the debt. See October 2019 Appellate Brief. The Veteran also submitted correspondence with his VA Form 5655 that the Board construes as a challenge to the validity of the debt as it included argument on whether the overpayment debt was validly created. The Veteran contends that the apportionee was in receipt of all his VA pension funds for the months prior to the apportionment, which directly relates to whether the Veteran’s funds were provided for her care. As such, further appellate review by the Board on the Veteran’s waiver claim must be deferred pending formal adjudication of a threshold determination on the propriety of the creation of the debt prior to a decision on the waiver of indebtedness. 38 C.F.R. § 1.911(c)(1). The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Adjudicate the issue of whether the overpayment of compensation benefits in the amount of $7,869.87 was properly created. The Veteran is to be advised that a timely notice of disagreement and substantive appeal must be filed in order to perfect an appeal on the issue of whether the overpayment debt in the amount of $7,869.87 was properly created. Only if the appeal is timely perfected is the issue to be returned to the Board. 3. After the issue regarding whether the overpayment was properly created is resolved to the Veteran’s satisfaction, perfected on appeal, or finally denied, issue a supplemental statement of the case (SSOC) that addresses the waiver issue, if appropriate (i.e., if creation of the overpayment debt was valid). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lambert 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.