Citation Nr: 20021777 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 06-26 022 DATE: March 30, 2020 REMANDED The matter of whether an overpayment in Department of Veterans Affairs (VA) compensation benefits, in the approximate amount of $32,000.00, was properly created at the time of the Veteran’s incarceration, is remanded. Entitlement to a waiver of recovery of overpayment of VA compensation benefits in the approximate amount of $32,000.00 is remanded. REASONS FOR REMAND This case involved apparently complex financial considerations and the Veteran’s attorney has indicated that the most recent audit is incomplete and contains inconsistent and/or inaccurate data. As such, the Board will review the recent development. In June 2015, the Board remanded this case. The remand instructions were as follows. 1. Prepare and associate with the claims file an itemized accounting of the Veteran’s debt to reflect the following: a) The amount of compensation paid to the Veteran during his incarceration from October 29, 2003 to April 22, 2008 (all payments with Veteran listed as payee, as opposed to any other beneficiaries listed as payee); b) The amount to which the Veteran was entitled during the period of his incarceration from October 2003 to April 2008; c) The difference between the amount entitled versus the amount paid, i.e. the original amount of overpayment; d) The amount of any funds withheld, paid, or otherwise credited towards the Veteran’s overpayment since the creation thereof, including the nature or source of any such credited amount if able to be determined; and e) The amount of the currently outstanding debt. In February 2014, an audit was performed. However, the audit was determined to be incomplete. The Board notes that the period of the overpayment was noted to be from June 1, 2003 to November 30. 2004 which totaled $42,291.48. The total paid was noted to be $10,291.48 and the balance was noted to be $32,000.00. The period of the overpayment was incorrect in this audit as to the requested period was October 2003 to April 2008. In March 2015, another audit was performed. This time the overpayment period was from June 2003 to February 2013. Again, this was an incorrect time period. The audit was again reviewed a year later, but using that same incorrect period. The next month is was noted that the beginning balance was $42,291.48. In February 2018, another audit was performed from June 2003 to May 2008. This again is not the correct time period. It was noted that the Veteran owed an overpayment of $42,291.48; that $10,291.48 was paid; and that $32,000.00 was the balance. It then noted that $219.00 in funds were applied so, the balance was $31,781.00. It then noted that there was a waiver debt of $856.00 so, $32,637.00 was the debt owed. Again, this was not the correct time period. The Veteran’s attorney then alleged errors in the audit. Another audit was performed in August 2018. That audit indicated that the period involved was October 2003 to April 2008. The amount paid to the Veteran (including a July 2008 refund) was $38,169.60. The amount due was $5,956.73. Thus, the total overpayment was $32,212.87. However, the debt balance was listed as $32,000.00. The audit then detailed how that balance of $32,000.00 had been recovered in full as of March 2013. Beneath that audit, was listed another audit dated from June 2003 to February 2013. For that period, it was noted that the amount paid to the Veteran was $190,491.20. The amount due to the Veteran was $179,343.72. It was noted that the overpayment was $11,147.48. It was then noted that there was a debt adjustment of $10,291.48. It was noted that there was a partial waiver grant of $856.00. Thereafter, correspondence was received from the Veteran’s attorney in which inconsistencies were noted. First, it was noted that previously, the debt was indicated to be $32,212.87, but the prior amount was listed as $42,291.48. The Board at this juncture notes that this difference reflects the overpayment period. Second the $10,291.48 amount was questioned and indicated it should have been used to lessen the original debt amount. The attorney noted disparities in the amounts indicated in the various audits and that there was sole VA error in this case. The case was then referred to the finance division of the RO for a new audit, but it was not performed. A subsequent supplemental statement of the case referred to the validity of $32,000.00 debt and did not address a waiver of the debt. Unfortunately, further audit action is necessary. The Board notes that the August 2018 audit reflected the correct time period, but it is unclear why the total amount of the debt was listed as $32,212.87, but then the amount of the debt (as recouped) was listed as $32,000.00. Also, the second audit for the longer time period has not been explained to the Veteran and clearly causes confusion regarding the debt adjustment of $10,291.48 and a partial waiver grant of $856.00 and what impact that had on the $32,212.87/$32,000.00 debt. The matters are REMANDED for the following action: 1. Review the August 2018 audit. Provide a clear explanation as to whether the debt is $32,212.87 or $32,000.00. Also, reconcile the second audit dated from June 2003 to February 2013 for the amount paid to the Veteran of $190,491.20, and amount due to the Veteran of $179,343.72. Provide a clear explanation to the Veteran and his attorney regarding the debt adjustment of $10,291.48 and a partial waiver grant of $856.00 and what impact that had on the $32,212.87/$32,000.00 debt. Clarify if there was a second debt. 2. Review whether the overpayment was properly created, to include the raised matter of sole administrative error. If the claim continues to be denied, including on this basis, issue the Veteran and his attorney an appropriate supplemental statement of the case (SSOC) which addresses both the creation and waiver issues and afford them the opportunity to respond. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Connolly, 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.