Citation Nr: 21001622 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 14-24 472A DATE: January 11, 2021 REMANDED Whether an overpayment of disability compensation benefits was properly created is remanded. Entitlement to waiver of the recovery of an overpayment of disability compensation benefits is remanded. REASONS FOR REMAND The Veteran served on several periods of active duty between July 2002 and February 2011. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 Regional Office (RO) rating decision. In December 2015, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In August 2016, the Board remanded the case for the AOJ to adjudicate the creation issue. The AOJ subsequently adjusted the time period and amount of the debt. In May 2018, the Board again remanded the issues on appeal for additional development, including obtaining clarification as to the Veteran’s type of service and VA policy for that service, generating a comprehensive paid and due audit, and addressing whether there was sole VA administrative error in creation of the debt. While the record shows that the RO obtained a comprehensive paid and due audit, as well as verification of the Veteran’s type of service, as discussed below, there was not substantial compliance with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, another remand is warranted. 1. Whether an overpayment of disability compensation benefits was properly created 2. Entitlement to waiver of the recovery of an overpayment of disability compensation benefits As previously noted in the May 2018 Board remand, the history of this case is complex and needs clarification. For the sake of brevity, the Board will not duplicate the discussion previously outlined in the May 2018 Board remand; however, a copy of the May 2018 remand must be provided to VA personnel accomplishing the remand directives. A March 2020 information report provides the Veteran’s dates of service and under which Title, 10 or 32, he was called to serve. However, while the Board directed that VA policy be resolved regarding whether concurrent benefits were permitted for any of the Veteran’s service, such was not accomplished, as no discussion of this VA policy is of record. Additionally, June 2011 and May 2012 electronic mails (e-mails) indicate that an eligible person could receive concurrent VA compensation benefits and active duty payment if on active duty under Title 32 orders but could not receive concurrent benefits under Title 10 orders. As these e-mails appear to be contradicted by later actions of record, the May 2018 Board remand directed that the content of these e-mails be addressed; however, the record shows that this was not completed. While a comprehensive audit report is of record, the document indicates that the retroactive amount of $3,159.00, caused by an Award action, would need to be researched by Veterans Service Center (VSC) to determine the cause. However, correspondence from VSC regarding the cause of the award action is not of record, and there is no further explanation for this retroactive payment. Lastly, while the RO issued a supplemental statement of the case (SSOC) addressing the issue of a waiver of the overpayment debt, it does not address the issue of debt creation, specifically the assertion that VA committed sole administrative error in the creation of the debt. Thus, a remand is warranted for additional development. The matters are REMANDED for the following action: 1. Resolve whether VA policy allows concurrent benefits for any of the Veteran’s service. In a Memorandum, the RO must address the contents of the June 2011 and May 2012 electronic mails of record related to the Veteran’s periods of service under either Title 10 or Title 32. 2. In a Memorandum, the RO must address the comprehensive audit obtained by the RO. (a.) The RO must indicate if/when the Veteran was paid concurrent benefits and if any of the checks were not cashed or returned. The exact time period of the total overpayment and the amount thereof should be clearly delineated with any appropriate reduction for returned checks. (b.) The RO must address the April 2011 payment and any other lump sum payments with an explanation as to why the Veteran was paid the amount(s). The RO must contact the Veteran’s Service Center (VSC) to research the history and reason for the payment. 3. Adjudicate the issue of whether the overpayment was properly created, specifically addressing the matter of sole VA administrative error. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, Associate 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.