Citation Nr: 20007376 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 19-01 669 DATE: January 30, 2020 REMANDED Whether the debt resulting from the removal of the Veteran's former spouse, R. N., from her award of Department of Veterans Affairs (VA) dependency benefits was validly created is remanded. Entitlement to waiver of recovery of the overpayment created by removal of the Veteran's former spouse, R. N., from her award of VA dependency benefits is remanded. REASONS FOR REMAND The Veteran had active service from August 2000 to May 2001. She also had additional Reserve service of an unverified nature. This matter comes to the Board of Veterans' Appeals (Board) from a December 2016 administrative decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran has another appeal before the Board that involves issues dependent on different law and facts. As such, that appeal is the subject of a separate Board decision. BVA Memorandum No. 01-18-04; VA Purplebook 01-18-v1.0.0. 1. Whether the debt resulting from the removal of the Veteran's former spouse, R. N., from her award of VA dependency benefits was validly created In the December 2016 administrative decision, the AOJ informed the Veteran that her VA dependency benefits had changed. Pertinent to the present appeal, VA dependency benefits for her former spouse, R. N., were terminated, effective from May 1, 2011. In a separate letter sent in December 2016, the Veteran was informed that this action resulted in her receipt of an overpayment from VA in the amount of $2,843.65, and this amount would be recouped via withholding of VA compensation, commencing in March 2017. In her January 2017 Notice of Disagreement (NOD), the Veteran expressed disagreement with, among other determinations, the effective date that her former spouse was removed from her award of VA dependency compensation. In doing so, she also challenged the validity of the debt created by this determination, which was the subject of the notice letter that she received from the AOJ later in December 2016. In the December 2018 Statement of the Case (SOC) the AOJ characterized this issue as “Was the Veteran's Ex-Spouse removed on the proper date?” In her substantive appeal, submitted later that month, the Veteran continued to challenge the effective date assigned for removal of her former spouse from her VA dependency benefit award and the validity of the debt resulting from this determination. As noted in the Introduction, the propriety of the effective date of removal of the Veteran’s former spouse from her VA dependency benefit award is the subject of a separate Board decision; however, the validity of the debt created by this determination is a downstream, intertwined issue that has not been addressed by the AOJ in the first instance. Indeed, if the Veteran’s debt to VA based on this determination is found to be invalid and/or is waived, the propriety of the effective date for removal of the Veteran’s former spouse from her VA dependency benefit award would, essentially, become moot – and vice versa. In light of above, to ensure due process of law and to allow the Veteran to pursue her appeal under any legal avenue is open to her, the Board concludes that the Veteran’s January 2017 NOD concerning the effective date assigned for the removal of her former spouse, R. N., from her VA dependency benefit award also includes a timely and effective challenge of the validity of the debt created pursuant to this determination. Governing VA laws provide that that the AOJ must provide the Veteran with an SOC readjudicating this matter, which has not occurred in this case. As such, a remand is necessary to correct this procedural inadequacy. 38 U.S.C. § 7105A (b) (West 2002); 38 C.F.R. § 19.101 (2017); Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to waiver of recovery of the overpayment created by removal of the Veteran's former spouse, R. N., from her award of VA dependency benefits As discussed above, the Board concludes that the Veteran initiated an appeal concerning the validity of the debt created by the AOJ’s removal of the Veteran's former spouse, R. N., from her award of VA dependency benefits, effective from May 1, 2011. If this debt is determined to be valid, a downstream and intertwined matter is whether waiver of the consequent overpayment is warranted. VAOPGCPREC 6-98; see also Narron v. West, 13 Vet. App. 223 (1999); Schaper v. Derwinski, 1 Vet. App. 430, 434 (1991). As such, the Board must defer adjudication of this issue until the matter of validity of the debt is addressed in the first instance by the AOJ and the intertwined matter of waiver of the overpayment is addressed in the first instance, if necessary, by the Committee on Waivers and Compromises (COWC). Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. The AOJ must undertake the necessary development and readjudication of the Veteran’s appeal of the issue of priority of May 1, 2011, as the effective date for the termination of VA dependency benefits for the Veteran’s former spouse, R. N., as is subject to a separate Board remand. 2. Thereafter, the AOJ must provide the Veteran with a Statement of the Case (SOC) addressing the issue of whether the debt resulting from the removal of the Veteran's former spouse, R. N., from her award of VA dependency benefits was validly created. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran and her private attorney should be given an opportunity to respond. 3. Thereafter, if the debt resulting from the removal of the Veteran's former spouse, R. N., from her award of VA dependency benefits is found to have been validly created, the Veteran and her private attorney should be allowed an opportunity to submit additional evidence pertinent to her request for waiver of recovery of the assessed overpayment, including a complete financial status report, citing all current income, expenses, and assets. 4. After the actions requested above have been completed, the case should be referred to the Committee on Waivers and Compromises (COWC)to review the record and reconsider the Veteran's request for waiver pursuant to the principals of equity and good conscience. If the decision remains adverse to the Veteran, the AOJ should issue to the Veteran and her private attorney an SOC which accurately reflects the reasons for the decision. The SOC should also include the pertinent laws and regulations, to include 38 U.S.C. § 5302 and 38 C.F.R. § 1.965, and a discussion of each of the elements of equity and good conscience, if appropriate. The Veteran and her private attorney should then be afforded a reasonable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.