Citation Nr: 20021414 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-23 017A DATE: March 25, 2020 REMANDED Whether an overpayment of educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) in the amount of $11,708.53 was properly created is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from February 2001 to April 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board has determined that clarification of the record is necessary and the matter is REMANDED for the directives below. The Veteran and her spouse testified before the undersigned Veterans Law Judge at a February 2020 videoconference hearing. A transcript of this hearing is of record. In December 2017, the VA Debt Management Center (DMC) sent the Veteran three separate demand letters informing her of the amounts of the overpayment and her rights to appeal and to seek a waiver of her debt. The Veteran did not file a request for a waiver of overpayment. Thus, the issue of entitlement to a waiver of recovery of overpayment is not before the Board. 1. Whether an overpayment of educational assistance benefits under the Post-9/11 GI Bill in the amount of $11,708.53 was properly created is remanded. The Board has determined that given hearing testimony, the appeal must be remanded. The Veteran is essentially challenging the validity of the debt by asserting that her withdrawal from her enrollment at a vocational school for the academic term beginning in May 2017 was due to mitigating circumstances. In October 2017, the Veteran’s husband, who is serving on active military duty, received orders to report to another posting in February 2018. Because of those orders, the Veteran had to prepare to relocate her family from Washington to North Carolina. At her February 2020 Board hearing, the Veteran testified that school, who informed her that if she withdrew from her academic term before November 1, 2017, she would not incur any debts to the school. The Veteran withdrew from her academic term on October 25, 2017. She said she received a refund from the school in the amount of $5,000. She said that she did not return the money to VA, but, instead, due to financial constraints during her family’s relocation, she kept the money. However, the Veteran said that she knew that she was responsible for repaying that $5,000 back to VA. She disputes that any further money should be repaid to VA, since she was forced to withdraw from her academic term when her husband was ordered to active duty. See May 2018 VA Form 9 and February 2020 Board hearing transcript. By asserting that there were “mitigating circumstances” in the creation of the debt, this has the potential of reducing or eliminating the overpayment in question. See 38 C.F.R. § 21.9635. Mitigating circumstances means circumstances beyond the individual’s control that prevent him or her from continuously pursuing a program of education. 38 C.F.R. § 21.9505. The following circumstances are representative of those that VA considers to be mitigating, although they are not all-inclusive: (1) An illness or mental illness of the individual; (2) An illness or death in the individual’s family; (3) An unavoidable change in the individual’s conditions of employment; (4) An unavoidable geographical transfer resulting from the individual’s employment; (5) Immediate family or financial obligations beyond the control of the individual that require him or her to suspend pursuit of the program of education to obtain employment; (6) Discontinuance of the course by the educational institution; (7) Unanticipated active duty for training; or (8) Unanticipated difficulties in caring for the individual’s child or children. Id. Before the Board can proceed to adjudicate the Veteran’s challenge of the validity of the debt, further development is required. In an August 2018 supplemental statement of the case, the RO states stated that “mitigating circumstances are not applicable in this circumstance as the claimant was paid for the time she attended the term.” To the extent that VA has already reduced the Veteran’s debt, the record is unclear; there is no documentation calculating how VA arrived at the debt in the total amount of $11,708.53, which was derived by calculating the sums of $10,801.03 (tuition and fees), $298.83 (housing allowance), and $608.67 (books and supplies). Given the information that VA apparently paid $19,000.00 in tuition and fees to Summit Salon Academy on the Veteran’s behalf, the record does not currently include information regarding how VA calculated the overpayment of $10,801.03 in tuition and fees. Moreover, it appears that the Veteran is also disputing the amount of the debt. In her February 2018 Notice of Disagreement, she indicated that she did not owe more than $5,100. As discussed above, the Veteran testified that she knew she had to repay VA for the $5,000 that Summit Salon Academy returned to her, but she suggested that she did not owe any more to VA. Based on the foregoing, a remand is required to obtain a detailed, yet straightforward, accounting showing how the total overpayment debt (to include listing all monies paid to or on behalf of the Veteran and the dates on which those payments were made, as well as how VA arrived at the payments) was calculated, must therefore be prepared, sent to the Veteran, and associated with the record. The matter is REMANDED for the following actions: 1. Create a clear accounting as to how the Veteran’s total of overpayment of Chapter 33 educational assistance benefits in the amount of $11,708.53 was calculated. All amounts paid for tuition and fees, a housing allowance, and books and supplies, to include the dates on which those payments were made, must be listed. Then, provide a detailed, yet straightforward, accounting showing how the total overpayment debt was calculated, to include how it arrived at payments for any partial months of schooling. 2. After the above development has been completed, readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.