Citation Nr: 21063202 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-11 899 DATE: October 13, 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. In January 2021, the Board remanded the appeal to the Department of Veterans Affairs (VA) Regional Office (RO) for additional development. Pursuant to the terms of the CAVC JMR, the Board found that the Veteran had challenged the validity of the debt. Specifically, during the 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. The Board directed the RO to conduct a paid and due audit and inform the Veteran of how the debt was calculated, and to adjudicate the issue of the validity of the debt to include consideration of the arguments made at the October 2018 Board hearing. There has not been substantial compliance with the Board's January 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that in an April 2021 deferred rating decision, the RO indicated that the Veteran married his spouse in October 2006 and was separated on April 8, 2008, that the Veteran worked from January 2012 to April 2013, and that the Veteran began receiving Social Security benefits in 2014. The RO indicated that further information was needed from the Veteran to clarify the dates of employment for his former spouse. The RO subsequently requested additional information from the Veteran. Specifically, in an April 2020 letter, the RO requested that the Veteran confirm the date his spouse began working and received her first paycheck, and that absent a response from him it would "assume she began working in October of 2006 and received her first paycheck in May of 2006". The RO also requested that the Veteran clarify the gross monthly wages for his spouse, and that that absent a response from him, it would "assume she was earning $1,304.00 per month in wages beginning October of 2006 and received her first check in October of 2006". The Veteran did not respond. However, after undertaking the development above, the August 2021 Supplemental Statement of the Case (SSOC) did not adjudicate the validity of the debt, to include addressing the Veteran's arguments from the October 2018 Board or consideration of the information from the April 2021 deferred rating decision or the assumptions communicated to the Veteran in the April 2020 development letter. Further, while a paid and due audit was associated with the file in April 2021, as directed in the January 2021 Board remand, it is not clear that this audit was provided to the Veteran or that the Veteran was otherwise informed of how the debt was calculated. Based on the above, remand is warranted for readjudication of the Veteran's request for a waiver of the recovery of the overpayment of VA benefits in the adjusted amount of $37,692.00, including the validity of the original debt. This matter is REMANDED for the following action: 1. Provide the Veteran with a copy of the April 2021 paid and due audit of his pension account. 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. 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.