Citation Nr: 21064930
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 16-03 080
DATE: October 22, 2021

REMANDED

Whether the Veteran's $44,160.00 debt was validly created is remanded.  

Entitlement to a full debt waiver is remanded.  

REASONS FOR REMAND

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 decision of the Committee on Waivers and Compromises that granted the Veteran a partial waiver of an overpayment resulting in a debt in the amount of $44,160.00 that resulted from a retroactive reduction in his nonservice-connected pension benefits.  

In December 2018, the Veteran testified at a Board hearing.  

In April 2019, the Board remanded the appeal for additional development.  The debt validity issue was incorporated into the remand of the issue of entitlement to a waiver of recovery of the overpayment and recharacterized as entitlement to a full debt waiver due to the prior grant of a partial waiver of recovery of the overpayment.  

1. Whether the Veteran's $44,160.00 debt was validly created is remanded.  

2. Entitlement to a full debt waiver is remanded.  

In the Board's April 2019 remand, the Veteran's challenge to the validity of his debt created was noted and the matter was remanded for the issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  See also December 2018 Board hearing testimony.  However, a statement of the case with respect to the validity of the debt has not been issued.  By issuing a February 2020 letter notifying the Veteran that the debt was validly created instead of a statement of the case, as directed by the Board, the RO did not follow proper appellate protocols.  See 38 C.F.R. § 19.26, 19.29, 19.30.  

The Board notes that although a February 2020 supplemental statement of the case addressed waiver of recovery of the overpayment, as reflected in the prior remand, when a veteran raises the validity of a debt as part of a waiver application, it is arbitrary and capricious and an abuse of discretion to adjudicate the waiver application without first deciding the veteran's challenge to the lawfulness of the debt asserted against him or her.  Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). 

To date, the Veteran has not been issued a statement of the case in compliance with the Board's previous remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Veteran must be provided a statement of the case and notified of the requirement to perfect a Board appeal in the legacy system.  Additionally, the Veteran must be provided notice of his right to opt the matter into any of the available review options under the modernized review system.  See 38 C.F.R. § 3.2400.  

The matters are REMANDED for the following action:

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1. Issue a statement of the case regarding the validity of the Veteran's $44,160.00 debt.

2. If necessary, after further consideration of the validity of the underlying debt, return the matters to the Board if otherwise in order.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Taylor

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.