Citation Nr: A21016323 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 210830-187154 DATE: October 5, 2021 ORDER Challenges to the propriety of the creation of an overpayment, to include the validity of the amount of the overpayment, are dismissed. FINDINGS OF FACT 1. In July 2021, the Department of Veterans Affairs (VA), agency of original jurisdiction (AOJ), issued an administrative decision informing the Veteran that, at some point in the future, the Veteran might be charged with an overpayment. 2. In August 2021, the Veteran's Representative filed VA Form 10182 Notice of Disagreement (NOD) asserting that the amount of attorney fees that will be paid by VA to the Representative would be incorrectly calculated, and accompanied the Veteran's NOD with an Appellant Brief, which: (a) was silent as to any error in the future calculation of the Representative's attorney fees; but (b) asserted that these future attorney fees or a portion thereof, if eventually charged to the Veteran as overpayment, would result in an overpayment that would be improperly created. CONCLUSION OF LAW The Veteran's challenges are unripe. 38 U.S.C. §§ 511, 7104, 7105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from April 1973 to April 1979, and from August 1982 to August 1996. This matter is before the Board on his appeal from an AOJ's July 2021 administrative decision, which notified the Veteran that his various disability compensation claims and his claim for a total disability rating based on individual unemployability were granted and generated a past-due benefits award in the amount of $30,289.44. The AOJ's July 2021 decision also notified the Veteran that VA was required to pay his Representative 20 percent of said past due benefits (seemingly, pursuant to a direct-pay fee agreement entered by the Veteran and the Representative) but due to a military retirement pay that capped the amount of the Veteran's actually payable, rather than theoretically awarded, past due benefits VA would be able to pay only $4,444.36 in attorney fees from the Veteran's past-due benefits. The AOJ, thus, informed the Veteran that, at some in the future, the RO might create and charge the Veteran with an overpayment in the amount equal $1,613.53 ($30,289.44/5 $4,444.36), since VA would be required to pay this $1,613.53 from VA's own funds supplied by the U.S. Treasury, rather than from the Veteran's past-due benefits. The events that followed were somewhat puzzling. In August 2021 even though the AOJ had not taken any action consistent with its July 2021 decision, e.g., did not issue the Veteran any final action notice, and the Debt Management Center (DMC) did not issue the Veteran any demand letter informing him of DMC's proposal to commence the recoupment process with the goal to collect $1,613.53 the Representative filed the Veteran's VA Form 10182 NOD and selected the direct review lane, plus accompanied the NOD with the Veteran's Appellant's Brief. The NOD stated only, "Improper calculation of attorney fees (see attached Brief)." The Appellant's Brief, being equally pithy, alleged as follows: [The AOJ's July 2021 decision] is incorrect as a debt was created against the Veteran for the attorney fee. Pursuant to Rosinski v. Wilkie, 32 Vet. App. 264 (2020), "the majority orders the Secretary to pay the [veteran's representative the representative's attorney] fee[s] . . . out of the Treasury." Because a debt was created against the Veteran, [the AOJ's July 2021 decision] is incorrect. Attorney fees should be paid by [VA] and not by the Veteran. The debt created against the Veteran is incorrect. Since, in actuality, no debt has been created against the Veteran at this juncture, and no recoupment has been proposed, plus the Veteran's NOD challenged the validity of the amount of the Representative's future attorney fees, while the Appellant's Brief challenged future creation of an overpayment debt, it is hardly surprising that the Board staff became confused as to what was challenged and who was the claimant. Therefore, the Board first informed the Representative that his challenge to the validity of the amount of his attorney fees was placed on the direct review docket in a non-adversarial action. Then the Board notified the Veteran that his challenge to the future propriety of the creation of his overpayment was placed on the direct review docket. Finally, upon realization that the Representative was not actually challenging the validity of the amount of his attorney fees, the Representative's challenge was removed from the docket. That left the Board with the Veteran's hypothetical challenge to the overpayment that might be created against him. Since, at this juncture, the Board is invited to adjudicate the propriety of the creation of the Veteran's overpayment that has not been created, the Board cannot adjudicate anything yet. Moreover, the Board would not be able to address the Veteran's unripe challenge even if the Board were to hold this matter on its docket until the AOJ issues a final action notice and DMC issues a demand letter: because, under the Veterans Appeals Improvement and Modernization Act, the Board is permitted to address only the evidence associated with the record by the time of the action being challenged (if the Board addresses claims placed by the litigants on the direct review lane), i.e., the AOJ's July 2021 decision. In sum, even if the AOJ issues a final action notice and DMC issues a demand letter before the Board issues its decision, the Board would still be required to ignore these documents as if they were never issued. Therefore, no matter how the Board were to slice it, the Veteran's claim presently at bar is and will remain unripe. Accord Conrad v. Dep't of Justice, 24 M.S.P.R. 452, 454 (1984) (while the Board is not a federal court but, rather, an administrative agency endowed with quasi-judicial functions, and it has powers and limitations distinct from those of an Article III court, this is a distinction without a difference for the purposes of the jurisdictional analysis at hand). Accordingly, the Veteran's claim is dismissed with a reminder that he can refile his claim once it ripens. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, 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.