Citation Nr: 21003793 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-11 899 DATE: January 22, 2021 REMANDED Entitlement to a waiver of recovery of an overpayment of Department of Veterans Affairs (VA) improved pension benefits in the amount of $37,692.00, to include the validity of the debt, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1973 to January 1975. In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In March 2019, the Board denied the Veteran’s claim for entitlement to a waiver of recovery of an overpayment of VA pension benefits in the amount of $37,692.00. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), and in August 2019, the Court granted the parties’ Joint Motion for Remand (JMR). The decision vacated the Board’s decision and remanded the issue for action consistent with the terms of the JMR. The parties to the JMR stated that the Board provided an inadequate statement of reasons or bases when it found that the Veteran did not challenge the validity of the debt. The parties stated that during his October 2018 Board hearing, the Veteran, through his representative, argued that “the amount of the debt was incorrect” because the only part of Veteran’s non-service-connected pension that should have been adjusted was the time period he was living with and receiving financial support from his wife, i.e., October 2007 (month married) through April 2008 (month separated, no longer living together, no financial support), but instead, VA discontinued the entirety of his non-service-connected pension from 2007 until 2011. Based on these statements, the parties agreed that the Veteran challenged the validity of the debt. The parties also agreed that the Board provided an inadequate statement of reasons or bases for its finding that the Veteran’s spouse’s income information for purposes of calculating annual income was not received until September 2016. The parties stated that in February 2011, VA informed the Veteran that he could submit pertinent evidence until November 19, 2011. In March 2011, the Veteran submitted a VA Form 5655, Financial Status Report. The parties stated that, in the record, there are first pages of completed VA Forms 21-0516-1, Improved Pension Eligibility Verification Reports (EVRs), and near these records is a second page of a VA Form 21-0516-1 that the Veteran signed on March 10, 2011. This document included the Veteran’s spouse’s October 2006 to April 2008 income information. Based on this information, the parties agreed that evidence of record appears to indicate that the Veteran submitted, and VA received, the requested VA Forms 21-0516-1, EVRs, for years 2007, 2008, 2009, and 2010, in as early as 2011. Considering the above discussion, the Board finds that a remand is necessary to obtain an audit of the Veteran’s pension account and to adjudicate and/or readjudicate the issues on appeal. The matters are REMANDED for the following action: 1. Conduct a written paid and due audit of the Veteran’s pension account. The audit should reflect, on a month-by-month basis, the amount actually paid to the Veteran, as well as the amount due. When performing the audit, VA should consider the information submitted on the Veteran’s March 2011 EVR. The Veteran must be informed of the amount of any debt he owes, if any, and how the debt was calculated. 2. Then, the AOJ should adjudicate the validity of the debt. The AOJ should consider the Veteran’s contention that the only part of his non-service-connected pension that should have been adjusted was the time period he was living with and receiving financial support from his wife. If the benefits, to include the waiver issue, sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.