Citation Nr: 21065817
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 14-18 550
DATE: October 27, 2021

REMANDED

Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) benefits, to include the question of whether the overpayment was properly created is remanded.

REASONS FOR REMAND

In an August 2019 decision, the Board of Veterans' Appeals (Board) determined that the overpayment in this case had been properly created and that a waiver of a recovery of that overpayment was not warranted.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  Pursuant to a Joint Motion for Remand (JMR), the Court, in an August 2020 Order, vacated the Board's decision and remanded the matter 

In pertinent part, the JMR referred to an earlier Board February 2018 remand which determined that the Veteran had challenged the proper creation of the debt.  At that time, the Board remanded the raised creation issue to the Agency of Original Jurisdiction (AOJ) to adjudicate that matter in the first instance.  Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991) ("when a Veteran raises the validity of the 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 a veteran's challenge to the lawfulness of the debt asserted against him or her"); VAOPGCPREC 6-98 (July 24, 1998) (holding that when a veteran challenges the validity of the debt and seeks waiver of the debt, the [Regional Office] must first fully review the debt's validity and, if the office believes the debt to be valid, prepare a written decision fully justifying the validity of the debt before referring the waiver request to the Committee on Waivers and Compromises).  The JMR basically questioned whether this initial AOJ consideration was adequately undertaken.  The Board notes that subsequent to the February 2018 Board remand, while the AOJ referred to how the debt was created in a supplemental statement of the case (SSOC), the analysis was addressed essentially pursuant to the element of fault within the waiver consideration.  Accordingly, and per the JMR, this matter is again referred to the AOJ for consideration.  It is noted that the Veteran's representative maintains that was VA's calculation of this debt includes a double calculation of the Veteran's Social Security Administration (SSA) retroactive payment and monthly benefits during the timeframe of July 2009 through October 2013.

The JMR also noted that with regard to the consideration for a waiver, the Board did not fully consider the assertions of financial hardship.  The Board notes that the Veteran has submitted statements indicating financial hardship and her case was previously advanced on the docket due to financial hardship.  

The matters are REMANDED for the following action:

1. Readjudicate the issue of whether the overpayment in this case was properly created, to include consideration of the proper calculation of the debt, addressing the contention that VA's calculation of the debt includes a double calculation of the Veteran's SSA retroactive payment and monthly benefits during the timeframe of July 2009 through October 2013.  

2. If the claim continues to be denied, issue the Veteran and her representative an appropriate supplemental statement of the case (SSOC) which addresses both the creation and waiver issues distinctly.  With the waiver consideration, the contentions of financial hardship should be considered and addressed.  Thereafter, the Veteran and her representative should be afforded an opportunity to respond.

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Connolly, 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.