Citation Nr: 20034569 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 14-10 055 DATE: May 18, 2020 REMANDED The issue of the validity of an overpayment of education benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) in the calculated amount of $8,274.34 is remanded. The issue of whether a request for waiver of recovery of overpayment of education benefits under Chapter 33 (Post-9/11 GI Bill) in the calculated amount of $8,274.34 was timely filed is remanded. REASONS FOR REMAND The record reflects that the Veteran served on active duty in the United States Army, with prior service in the Army National Guard. The appellant is his spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, to the effect that the overpayment charged to the appellant was properly created and that her request for waiver of the overpayment was untimely. The appellant had requested a hearing before a Veterans Law Judge (VLJ) of the Board as part of this appeal. A hearing was scheduled for March 2018, but the appellant did not appear. Accordingly, her request is deemed withdrawn. See 38 C.F.R. § 20.704. 1. The issue of the validity of an overpayment of education benefits under Chapter 33 (Post-9/11 GI Bill) in the calculated amount of $8274.34 is remanded. The present appeal concerns Chapter 33 (Post-9/11 GI Bill) education benefits that were transferred to the appellant from the Veteran (her spouse). See 38 U.S.C. § 3319; 38 C.F.R. §§ 21.9520, 21.9570. VA generally is required to recover erroneous VA payments or overpayments of benefits. See Edwards v. Peake, 22 Vet. App. 57, 59 (2008); 38 U.S.C. § 5314(a) (generally requiring VA to deduct from future benefit payments a debt arising from a person's participation in a VA benefits program); 38 C.F.R. § 1.912a(a) (same); 38 U.S.C. § 5316 (authorizing VA to recover a benefit(s) related debt by bringing a suit if the person fails to appropriately respond to reasonable administrative efforts to collect the debt). That is, whenever the Secretary finds that an overpayment has been made to a veteran or eligible person, the amount of such overpayment shall constitute a liability of such veteran or eligible person to the United States. 38 U.S.C. § 3685; Mountford v. Shinseki, 24 Vet. App. 443, 450, n.6 (2011). The preliminary issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). In other words, before deciding a request for waiver, VA must first consider the validity of the debt. See also 38 U.S.C. § 5314(b) (prohibiting offset of a debt from future benefit payments unless VA first makes a determination with respect to the beneficiary’s dispute of existence or amount of debt). 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. See 38 C.F.R. § 1.911(c)(1); see also VAOPGCPREC 6-98. The propriety and amount of the overpayment at issue are matters that are integral to a waiver determination. See Schaper, 1 Vet. App. at 434. Here, the appellant, among other things, has questioned the calculated amount of the overpayment in question. Specifically, the calculated amount $8274.34 was for housing allowance under Chapter 33 (Post-9/11) for which it was determined the appellant was not legally entitled to receive as the Veteran was on active duty. In her July 2013 Notice of Disagreement (NOD), the appellant reported that at no time did she receive any amount as part of her education benefits that came close to $8274.34, and she did not understand where that money came from. She contended that her bank records for the pertinent period showed only $888 that she received in October 2012. Granted, she also stated that she received the housing allowance from August 2011 to October 2012 on her January 2014 Form 9. She further contended that she was entitled to such benefits for the period from November 2009 to November 2011 as the Veteran was in Reserve status while attending warrant officer school. The Board notes that the October 2013 Statement of the Case (SOC) notes that the amount of the overpayment in this case was determined in November 2012. However, while other records are on file from November 2012, no such calculation/determination regarding the amount of the overpayment has been made part of the evidence available for review. In light of the foregoing, the Board finds that a remand is required to conduct an audit and provide a statement clarifying the amount of the overpayment and how it was calculated. Such development should include consideration of the appellant’s contention she was properly entitled to a housing allowance for the period from November 2009 to November 2011. 2. The issue of whether a request for waiver of recovery of overpayment of education benefits under Chapter 33 (Post-9/11 GI Bill) in the calculated amount of $8274.34 was timely filed is remanded. As noted above, the validity of a debt is a threshold determination that must be adjudicated before addressing whether a waiver of an overpayment is warranted, to include whether a timely waiver request was received. In that way, the issues are inextricably intertwined. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). In the interests of judicial economy, the Board will defer adjudication of the waiver issue until the development sought with respect to the validity of the overpayment has been completed. These matters are REMANDED for the following action: 1. Prepare a complete audit of the appellant's account in this case. The audit should include the amount of the overpayment and a detailed explanation of how the overpayment of $8274.34 was calculated. Specific details should be provided, and should reflect consideration of, the appellant’s contention in her January 2014 Form 9 that she was entitled to a housing allowance for the period from November 2009 to November 2011 because the Veteran was in Reserve status while attending warrant officer school. A copy of the audit must be associated with the claims file. The appellant must be provided with the proper notice of the amount of the debt, and a copy of the audit, and be provided an appropriate opportunity to respond. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the issues on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant   should be issued a supplemental SOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.