Citation Nr: 21064242 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-14 678 DATE: October 19, 2021 REMANDED The issue of the propriety of withholding 18 days of drill pay for fiscal year 2015 (October 1, 2014 through September 30, 2015) in the amount of $858.65 is remanded. Whether the request for waiver of recovery of overpayment of VA benefits in the amount of $18,087.91 was timely filed is remanded. REASONS FOR REMAND The Veteran served on active duty during the Gulf War Era from June 1993 to June 1997, from February 2003 to June 2005, and from October 2010 to November 2011. 1. The issue of the propriety of withholding 18 days of drill pay for fiscal year 2015 (October 1, 2014 through September 30, 2015) in the amount of $858.65 In September 2016 the Department of Veterans Affairs (VA) Regional Office (RO) issued a Notification Letter informing the Veteran of an adjustment to his VA compensation due to the receipt of military drill pay for 18 days during Fiscal Year (FY) 2015. The Veteran was further informed that the VA actions resulted in a debt of $858.65. A review of the record shows that the Veteran has disputed the VA calculation of the overpayment debt and has requested an audit. The Board notes that in addition to the September 2016 letter notifying the Veteran of the overpayment debt due to concurrent receipt of VA compensation and FY 2015 drill pay, an April 2016 notification letter informed the Veteran of a reduction in benefits due to active duty from October 2010 to November 2011; adjusted the amounts of withholding for FYs 2012, 2013, and 2014 drill pay due to the removal of his spouse from his compensation award; and adjusted his VA compensation due to drill pay during FYs 2007, 2008, 2009, 2010, 2012, 2013, and 2014. The RO maintains a that debt notification from the Debt Management Center (DMC) was issued in April 2016 notifying the Veteran of the amount of his overpayment debt and his appellate rights, and that debt increase letters were issued in May 2016 and September 2016. However, the May 2016 and September 2016 letters have not been associated with the record. Upon further inquiry by the Board, the RO has acknowledged that these letters were not found in the DMC database. The Veteran has expressed confusion regarding the amount of the overpayment debt and the period covered by that debt. In the November 2016 Notice of Disagreement (NOD), the Veteran disagreed with the "debt created for military drill pay for 2015". However, in a November 2018 statement, the Veteran references a debt for "2015-2016" and states that he does not understand how the debt for those two years is $18,000. In the May 2019 substantive appeal, the Veteran requested an audit of his VA disbursements. At the July 2021 Board hearing, the Veteran testified that VA collected the overpayment debt from April 2016 to October 2017 and that he believed the debt was paid in full. He further testified that two years later he received a letter stating that he still owed $14,000. In this case, during a six month period in 2016, the Veteran was issued several notification letters involving multiple debt periods, to include the FY 2015 period on appeal. However, relevant debt notification letters have not been associated with the record and no audit or accounting has been provided as requested by the Veteran. As such, it remains unclear how the amount of the debt was calculated for FY 2015, and whether the correct amount was recouped for this debt period. 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. 2. Whether the request for waiver of recovery of overpayment of VA benefits in the amount of $18,087.91 was timely filed As an initial matter, the Board notes that the Veteran's appeal for the issue of entitlement to a waiver of an overpayment debt in the amount of $18,087.91 was closed by the RO for failure to respond, although the record does not indicate that the RO has notified the Veteran of a finding that his substantive appeal was not timely. However, the Veteran asserts that the VA Form 9 was timely filed. See July 2021 Hearing Transcript. The Board may address in the first instance whether a substantive appeal was adequate and timely at any stage in a proceeding before it, regardless of whether the RO addressed this issue. See 38 C.F.R. § 20.101(d). In a January 2019 decision, the Committee on Waivers and Compromises (COWC) denied the Veteran's request for waiver of an overpayment debt in the amount of $18,087.91, as the waiver request was not timely. The Veteran filed a NOD in February 2019, and a Statement of the Case (SOC) was issued on December 2, 2019. Under 38 C.F.R. § 20.302(b)(2), the Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the applicant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. At the July 2021 Board hearing, the Veteran testified that he timely visited the Atlanta RO to file an appeal of the December 2019 SOC, although he was unable to recall the date he visited. Although there is no evidence of record indicating that the Veteran submitted a substantive appeal at the Atlanta RO, a review of the record shows that the Veteran mailed a VA Form 9 to the DMC. The postmarked envelope used to mail the Form 9 is not legible. The VA Form 9 was stamped by the DMC with a receipt date of February 10, 2020. On April 1, 2020, the DMC forwarded the VA Form 9 to the Board for processing, with a note that it was received on February 10, 2020. Under 38 C.F.R. § 20.305(a), where the postmark is not of record, the postmark date is presumed to be five days prior to the date of receipt. In calculating the five-day period, Saturdays, Sundays, and legal holidays will be excluded. The postmark on the envelope which accompanied the substantive appeal, which was received on Monday, February 2020, is illegible. Thus, applying 38 C.F.R. § 20.305 (a) to determine the filing date requires the Board to subtract the five days provided by the regulation, and two additional days, in order to exclude the weekend of Saturday February 8 and Sunday February 9, resulting in an adjusted filing date of Monday, February 3, 2020. Under 38 C.F.R. § 20.305(b), in computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. In this case, the SOC is dated December 2, 2019. Therefore, under paragraph (b) of § 20.305, December 2, 2019, is considered "the first day of the specified period", and that day is excluded from consideration in computing the time period for filing. The 60 day period for filing the substantive appeal in this case began on December 3, 2019. The period ended on Saturday, February 1, 2020. As weekends are excluded for the purpose of computing the time limit, the end of the period is extended to Monday, February 3, 2020. As such, the Veteran's substantive appeal is presumed to have been received on Monday, February 3, 2020, which the last day of the time period. Therefore, the Veteran's appeal is timely. The Veteran's waiver request was denied by the COWC because it was not timely filed. However, as discussed above, the relevant May 2016 and September 2016 DMC notices are not associated with the file. As such, the Board is unable to determine whether these notices were sent to the Veteran and, therefore, is unable to properly decide whether the Veteran's waiver application was timely filed. While the Board recognizes that the RO has indicated that the debt notification letters are not available, a remand is necessary to ensure that the RO has made every attempt to obtain the relevant documents in this case. The matters are REMANDED for the following action: 1. Obtain and associate with the record the DMC notices dated May 3, 2016 ($10,878.33) and September 19, 2016 ($858.65). All efforts to obtain the notices should be documented. 2. Conduct a paid and due audit, or similar accounting, of the Veteran's benefits and adjustments for concurrent receipt of active duty and drill pay for the period from FY 2007 to the Present, to include the repayment period. The audit should indicate, on a month-by-month basis, the amount actually paid to the Veteran, and the amount properly due. A copy of the written audit should be placed in the claims file and another provided to the Veteran and representative. A. S. CARACCIOLO 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.