Citation Nr: 21004466 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-07 677 DATE: January 27, 2021 REMANDED Entitlement to a waiver of recovery of an overpayment of transferred educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) in the amount of $15,168.20 for tuition/fees, books/supplies, and a housing allowance, and any associated interest paid, and to include whether the debt was validly created, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from May 1986 to October 1997, from June 2004 to May 2006, and from August 2006 to October 2010 with additional periods of service in the Marine Corps Reserves. The appellant is the Veteran’s daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which found that the appellant was overpaid Post-9/11 GI Bill educational assistance benefits in the amount of $54,919.43. The appellant appealed the decision. The appellant and the Veteran testified before the undersigned Veterans Law Judge at a February 2020 videoconference hearing. A transcript of this hearing is of record. In March 2020, the Board remanded the issue on appeal for additional development. During the pendency of the appeal, in August 2020, the RO issued a decision finding that an overpayment of educational assistance benefits under the Transfer of Entitlement (TOE) provision of the Post-9/11 GI Bill was paid to the appellant due to administrative error. The RO found that payments made after February 29, 2012 in the amount of $39,751.23 were due to administrative error. However, the RO also found that payments made prior to February 29, 2012 were a valid debt in the amount of $15,168.20. 1. Entitlement to a waiver of recovery of an overpayment of transferred educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) in the amount of $15,168.20 for tuition/fees, books/supplies, and a housing allowance, and any associated interest paid, and to include whether the debt was validly created, is remanded. At the outset, the Board recognizes that the procedural history is complicated regarding the appellant’s claim for entitlement to a waiver of recovery of an overpayment of Post-9/11 GI Bill educational assistance benefits, to include whether the debt was validly created. However, in the interest of fairness to the appellant, the Board finds that further development is required. An overpayment is created when VA determines that a beneficiary or payee has received benefit payments in excess of the amount due or to which such beneficiary or payee is entitled. 38 C.F.R. § 1.962. The debtor may challenge the validity or amount of the debt owed. See 38 C.F.R. § 1.911(c)(1); see also VAOPGCPREC 6-98; Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). The debtor may also apply for a waiver of any debt found to be valid. See 38 U.S.C. § 5302; 38 C.F.R. §§ 1.911(c)(2), 1.963. The issue of whether the underlying debt is valid 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 (1991). For a determination that the overpayment was not properly created, such that the debt was not valid, it must be established that the claimant was either legally entitled to the benefits in question or, if the claimant was not legally entitled, then it must be shown that VA was solely responsible for the claimant being erroneously paid benefits. Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. VAOPGPREC 2-90 (July 17, 1989), 55 Fed. Reg. 27757 (1990). The Board has already established that the appellant has both challenged the validity of debt and has sought a waiver of that debt. Despite the determination by the RO in its August 2020 decision that a portion of that debt was due to administrative error, the Board finds that for the remaining debt, the appellant is not obligated to file another waiver request before the Agency of Original Jurisdiction (AOJ) proceeds to adjudicate the waiver issue on its merits. However, before the Board can proceed to adjudicate the appellant’s claim, further development is required. First, at the February 2020 Board hearing, the Veteran testified that after the debt, including interest, had been repaid in October 2019, he received three letters in November 2019 indicating that his debt was “zeroed out.” He then indicated that he received a January 2020 VA letter notifying him that his Post-9/11 GI Bill benefits had been fully restored. A careful review of the record, which includes the appellant’s education file, does not show that the January 2020 VA letter has been associated with the record. In compliance with the March 2020 Board remand, the AOJ asked the appellant and/or Veteran to provide a copy of that January 2020 VA letter, but there was no response to that request. Another remand is required to ask the AOJ to investigate whether this January 2020 VA letter exists, as it may be relevant evidence as to whether the appellant’s debt is valid. Further, the AOJ should provide the appellant another opportunity to submit the January 2020 VA letter that the Veteran received. Second, following the August 2020 VA decision, the AOJ found that the appellant still had a valid debt remaining in the amount of $15,168.20. Because the Veteran retired from the Marine Corps Reserves on February 29, 2012 and did not complete his service obligation, which was projected to end on March 18, 2015, the AOJ determined that any payments made to appellant prior to February 29, 2012 were not the result of administrative error on the part of VA. Thus, the overpayment for that period was a valid debt. However, the Veteran testified at his February 2020 Board hearing that a January 2020 VA letter he received had fully restored his Post-9/11 GI Bill benefits. On remand, the AOJ should readjudicate the issue of whether the education debt in the amount of $15,168.20 was validly created and consider any new evidence received on this issue, to include the January 2020 VA letter. Finally, if necessary after readjudicating the issue of whether the appellant’s education debt was validly created, on remand, the AOJ should adjudicate the issue of entitlement to a waiver of recovery of an overpayment for Post-9/11 GI Bill benefits in the amount of $15,168.20, or any other amount of remaining debt. The Board, in taking jurisdiction of this issue, already accepts that a timely waiver request has been received by the appellant; thus, another waiver request is not required prior to adjudicating the waiver issue. Nevertheless, the AOJ should offer the appellant an opportunity to submit a Financial Status Report (VA Form 22-5655) to support her request for a waiver. The matter is REMANDED for the following actions: 1. Investigate the existence of a January 2020 VA notification letter indicating that the Veteran’s Post-9/11 GI Bill benefits had been fully restored. See February 2020 Board hearing transcript at page 3. Document all attempts to locate this letter and associate such documentation in the record. 2. Ask the Veteran and/or appellant to submit the January 2020 VA notification letter indicating that the Veteran’s Post-9/11 GI Bill benefits had been fully restored. Allow a reasonable amount of time for the Veteran and/or appellant to respond. 3. After the above development has been completed, readjudicate the issue of whether the overpayment of educational assistance benefits under the Post-9/11 GI Bill in the amount of $15,168.20 for tuition/fees, books/supplies, and a housing allowance, was validly created. 4. Then, if necessary, adjudicate the issue of entitlement to a waiver of recovery of an overpayment for Post-9/11 GI Bill benefits in the amount of $15,168.20, or any other amount of remaining debt. Before adjudicating, offer the appellant an opportunity to submit a Financial Status Report (VA Form 22-5655). The appellant has already filed a timely waiver request; thus, adjudication of the waiver issue does not require that the appellant submit another waiver request before proceeding. LESLEY A. REIN 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.