Citation Nr: A21016856 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 190913-31064 DATE: October 18, 2021 REMANDED Entitlement to a waiver of Department of Veterans Affairs (VA) compensation benefits in the amount of $26,569.00 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1971 to August 1972. The Veteran died in May 1999. The appellant is the Veteran's surviving spouse. In September 2019, the appellant filed VA Form 10182, Notice of Disagreement, choosing to continue her appeal via Direct Review by a Veterans Law Judge under the Appels Modernization Act (AMA). Direct review is the appeal option to the Board in which a Board decision is issued based on evidence of record at the time of the prior decision. The Board cannot hold a hearing or accept into the record additional evidence in its direct review. Under AMA, remand is not permitted except for certain pre-decisional errors. 38 C.F.R. §§ 20.303, 20.802. By way of history, in August 2013, the Agency of Original Jurisdiction (AOJ) received information stating that the appellant had been incarcerated from February 27, 2013. She was released on March 1, 2013. The Board is unsure of when the appellant was awarded improved pension benefits; however, the records reflect that she was receiving benefits at the time of her incarceration. In October 2014, the Debt Management Center (DMC) assessed a debt of $26,569.00. The DMC letter informed the appellant that she had the right to dispute the debt and request a waiver. The letter also stated that the information regarding these options was located on the document entitled, Notice of Rights and Obligations. In August 2019, the Committee on Waivers and Compromises (Committee) denied the appellant's waiver request. The Committee noted that the appellant's waiver request was received on July 24, 2019. The Committee stated that the appellant was previously notified of the indebtedness on October 2, 2014, the right to request waiver, and the 180-day time limit for filing an application for waiver. Due to the untimely submission of the appellant's "waiver request package," the Committee denied her waiver request. On her September 2019 appeal, the appellant stated that she was appealing the "Compensation/Pension indebtedness Denied-did not request for waiver w/in 180 day time limit." As an initial matter, the Board observes that the "waiver request package" is unavailable for review. As such, the scope of the appellant's appeal is unsettled. Specifically, because the appellant's filing is not available for review by the Board, it is unclear as to the actual date the appellant filed her request along with whether such include disagreement with the validity of the debt, which is considered a threshold matter which must be adjudicated by the AOJ in the first instance. Schaper v. Derwinski, 1 Vet. App. 430, 434-35 (1991) see also VAOPGCPREC 6-98. Under the AMA, the Board may remand an appeal to the AOJ to correct pre-decisional errors in VA's duty to assist. While acknowledging that VA's duty to assist the Veteran does not apply to cases involving waiver of recovery of an overpayment, Barger v. Principi, 16 Vet. App. 132, 138 (2002), the Board concludes that a remand is necessary, nonetheless. Pertinently, as noted above, the incomplete nature of the record for review calls into question whether the appellant was provided due process of law regarding the present appeal. Downstream from this procedural error, the Board concludes that the appellant's appeal is unripe for readjudication. In such cases, readjudication by the Board prior to ensuring due process of law would be subject to vacatur under 38 C.F.R. § 20.100(a). While the Board observes that VA's duty to assist the appellant generally involves actions in furtherance of necessary evidentiary development, the present case exemplifies that such a duty also includes the onus to ensure that proper procedural actions are completed. As such, the Board concludes that a remand is necessary to (1) ensure the completeness of the record, (2) adjudicate the threshold matter of the validity of the appellant's debt, if appropriate, and (3) adjudicate the merits of the propriety of the waiver of the VA overpayment, if appropriate. The matter is REMANDED for the following action: 1. The AOJ must ensure that the electronic record is complete. Specifically, the appellant's July 24, 2019 "waiver request package" must be scanned into the electronic record. If the document cannot be located and it is determined that further efforts in this regard would be futile, issue a formal finding of unavailability in accordance with the provisions of 38 C.F.R. § 3.159(e)(1). Notify the appellant and her representative as to the unavailability of this filing and request that they submit any copy in her possession or other evidence of this filing. 2. Then, after conducting a thorough review of the evidence and undertaking any additional development deemed necessary, the AOJ must readjudicate the merits of the appellant's request for a waiver, to include the preliminary issue of the validity of the debt, if appropriate. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.