Citation Nr: 20007282
Decision Date: 01/28/20	Archive Date: 01/28/20

DOCKET NO. 16-24 400
DATE: January 28, 2020

REMANDED

The propriety of the creation of the overpayment of VA pension benefits in the amount of $43,989.33 is remanded.

INTRODUCTION

The Veteran served on active duty from October 1967 to August 1970.  He died in September 1996, and the Appellant is his surviving spouse.

In May 2019, the Appellant failed to report for her scheduled hearing before the Board.  Since that time, she has not provided a good cause basis for her failure to report or requested that her hearing be rescheduled.  As such, the prior request for a hearing is deemed withdrawn.

REASONS FOR REMAND

The Appellant began receiving death pension benefits in November 1996.  The evidence shows that she subsequently began receiving benefits from the Social Security Administration (SSA) in May 2009.  As a result of a data match, the Pension Management Center (PMC) discovered the Appellant’s SSA income.  In an October 2014 letter, the PMC proposed to terminate the Appellant’s pension payments, because her SSA income exceeded the maximum annual pension rate of $7933.00 at that time.  Following a retroactive adjustment, the above-noted overpayment was created.  

The Board notes M21-1, Part III, Subpart v, Chapter 2, Section B, Sub-Section 1 specifically articulates certain development procedures that must be performed by the RO when an overpayment has been created, and when a decision will affect pension benefits.  In particular, this manual reference instructs the RO to notify the beneficiary of the overpayment, as well as his/her rights to request a waiver of the overpayment and/or a repayment plan.  This reference further instructs the RO that such notice must also include pension rate tables, and information about countable income and exclusions from income, including medical expenses.  See also 38 C.F.R. § 3.272. 

Both the October 2014 proposed action letter and January 2015 final action letter failed to provide the Appellant proper notice in accordance with the above-noted manual directives.  As such, the Board finds a remand is necessary in order to provide the Appellant proper notice and assistance required by law.  

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Accordingly, this case is REMANDED for the following actions:

Provide the Appellant with notice of her rights to request a waiver of the overpayment and/or a repayment plan for the overpayment created following her receipt of SSA benefits in May 2009.  Also provide the Appellant with pension rate tables, and information about countable income and exclusions from income, including medical expenses as required by M21-1, Part III, Subpart v, Chapter 2, Section B, Sub-Section 1.  Further, the RO must also advise the Appellant of how the RO may be able to assist her in obtaining any records that could be of support to her appeal.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Fraser, 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.