Citation Nr: 20007453 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 18-42 540A DATE: January 29, 2020 REMANDED Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $25,100.82, to include the question of whether the overpayment was properly created is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans’ Appeals (Board) on appeal from notification letters from the Department of Veterans Affairs (VA) Regional Office (RO), notifying the Veteran of changes to his award due to concurrent receipt of VA compensation benefits and active duty/drill pay. Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $25,100.82, to include the question of whether the overpayment was properly created is remanded. In this case, the Veteran has challenged the proper creation of the debt. As such further appellate review by the Board of Veterans’ Appeals (Board) on the Veteran’s waiver claim must be deferred pending formal adjudication of her challenge to the validity of the debt. Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). 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). Resolution of the creation issue must precede consideration of the waiver issue. In that consideration of the propriety of the creation, for a determination that the overpayment was not properly created such that the debt was not valid, it must be established that the Veteran was either legally entitled to the benefits in question or, if the Veteran was not legally entitled, then it must be shown that VA was solely responsible for the Veteran being erroneously paid benefits. Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. VAOPGCPREC 2-90 (July 17, 1989); 55 Fed. Reg. 27757 (1990). Sole administrative error connotes that the Veteran neither had knowledge of nor should have been aware of the erroneous award. Further, neither the Veteran’s actions nor his or her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C. § 5112 (b)(9), (10); 38 C.F.R. § 3.500 (b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). Thus, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary is unaware that the payments are erroneous. The United States Court of Appeals for Veterans Claims (“the Court”) noted that, “[s]tated another way, when an overpayment has been made by reason of an erroneous award based solely on administrative error, the reduction of that award cannot be made retroactive to form an overpayment debt owed to VA from the recipient of the erroneous award.” Erickson v. West, 13 Vet. App. 495, 499 (2000). Here, the Veteran appears to contend that he was notified he had one year, rather than 180 days, to disagree with VA’s decision. He also stated he notified VA of changes to his employment status and requested to stop receiving VA compensation benefits, but he continued to be paid. Thus, he contends that overpayment was the result of sole administrative error. For this reason, he has contended that the overpayment was not properly created. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding documents relating to the claim on appeal, to include any correspondence from the Debt Management Center or the Committee and any audits relating to the overpayment. 2. Adjudicate the issue of whether the overpayment was properly created. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dean, 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.