Citation Nr: 21062798
Decision Date: 10/12/21	Archive Date: 10/12/21

DOCKET NO. 05-25 928
DATE: October 12, 2021

REMANDED

Whether the recoupment of severance pay in the amount of $38,692.20 was proper is remanded.

REASONS FOR REMAND

The Veteran had active service from July 1982 to November 1994.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, in part, granted service connection for posttraumatic stress disorder (PTSD) on the basis of clear and unmistakable error, thereby warranting recoupment of the Veteran's severance pay in the amount of $38,692.20.  

In April 2016, the Board remanded the appeal to the RO for additional development.

The appeal has been returned to the Board for further consideration.

Whether the recoupment of severance pay in the amount of $38,692.20 was proper

Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claim so that every possible consideration is afforded.

The April 2016 Board remand directed the RO to obtain clarification by the Department of Defense of whether the Veteran's service was subject to the exception for recoupment due to disability incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  Specifically, while the Veteran served in support of Operation Desert Shield/Storm, it is unclear from a review of the evidentiary record whether the Veteran served in "combat-related operations as designated by the Secretary of Defense."  

In letters to the Chief Information Officer of the Office of the Department of Defense, dated August 12, 2020 and September 11, 2020, the RO requested clarification or determination of whether the Veteran's active service and PTSD were incurred during performance of duty in combat operations.  The RO confirmed the denial of the Veteran's claim in an October 2020 Supplemental Statement of the Case (SSOC).

However, in December 2020, the August 2020 and September 2020 letters were returned as undeliverable.  As such, there has not been substantial compliance with the Board's previous remand directives and another remand is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998). 

The matters are REMANDED for the following action:

1. Contact the Department of Defense and request clarification/determination of whether the Veteran's active service and her PTSD were incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  In this regard, the Veteran's service in support of Operation Desert Shield/Storm from August 1990 to November 1994 should be acknowledged and considered.  

2. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the record.  If the benefits sought on appeal remain denied, furnish the Veteran with a Supplemental Statement of the Case and afford her the opportunity to respond before the file is returned to the Board for further consideration.  

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Bynum, 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.