Citation Nr: 21066057 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-48 259A DATE: October 28, 2021 REMANDED Validity of a debt due to overpayment of VA compensation benefits in the amount of $8,850.26 Waiver of recovery of an overpayment of VA compensation benefits in the amount of $8,850.26. REASONS FOR REMAND The Veteran served on active duty from June 1960 to May 1962 and from October 1967 to June 1988. The case is on appeal from a March 2017 overpayment decision by the Debt Management Center (DMC) and a June 2017 decision of the Committee on Waivers and Compromises (COWC). The Veteran's June 2017 notice of disagreement (NOD) as to the denial of a waiver was also timely as to the validity of debt. Thus, both issues are on appeal. A Board hearing disposition form notes that the Veteran was aware of the scheduled Board hearing in October 2021. However, the hearing was cancelled. There is no indication in the claims file as to why the Veteran cancelled the Board hearing, or a subsequent request for a hearing. As such, the Veteran's hearing request is deemed withdrawn. 1. Validity of a debt due to overpayment of VA compensation benefits in the amount of $8,850.26. 2. Waiver of recovery of an overpayment of VA compensation benefits in the amount of $8,850.26. The Veteran has challenged the validity of the overpayment debt. He maintains the overpayment should not have been created based on his remarriage thirty days after his divorce was final. See September 2017 Form 9. The Board notes that although the August 2017 statement of the case (SOC) states that the Veteran did not know when he was divorced in the 1980s, the divorce certificate reflects his divorce was final on March 24, 2008. See November 2016 Divorce Decree. Resolution as to the validity of the debt must precede consideration of the waiver issue and must include consideration as to whether the Veteran was either legally entitled to the benefits in question or, if the Veteran was not legally entitled, whether VA was solely responsible for the Veteran being erroneously paid benefits. 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). A debtor may dispute the amount or existence of a debt, which is a right that may be exercised separately from a request for waiver or at the same time. 38 C.F.R. § 1.911(c)(1). Because the RO has not yet considered the validity of the debt despite the timely NOD, and in light of the holding in Schaper, a remand is necessary to address that question in the first instance. The matter is REMANDED for the following action: 1. Adjudicate the preliminary issue as to the validity of debt in the amount of $8,850.26 of VA compensation benefits. If it is determined that the overpayment at issue was improperly created, appropriate action should be taken. (Continued on the next page) 2. Thereafter, readjudicate the Veteran's request for a waiver of recovery of the overpayment of VA compensation benefits in the amount of $8,850.26, if in order. If any aspect of the appeal remains denied, the Veteran should be issued a supplemental statement of the case (SSOC) and allowed an appropriate period of time to respond before the case is returned to the Board, if in order. RYAN T. KESSEL 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.