Citation Nr: 21067691 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 19-32 787 DATE: November 5, 2021 REMANDED Whether the overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $38,797.56 was properly created due to a retroactive reduction in the compensation rate to the 10 percent rate as of the 61st date of the Veteran's felony conviction is remanded. REASONS FOR REMAND The Veteran served on active duty during the Gulf War era from September 1994 to September 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2017 administrative decision of the Department of Veterans Affairs (VA) Regional Office. In a December 2017 Notification Letter, the Veteran was informed that his VA compensation was reduced to the 10 percent rate effective May 3, 2015 due to his incarceration in excess of 60 days from conviction of a felony. The RO actions resulted in an overpayment in the amount of $38,797.56. The Veteran has challenged the validity of the overpayment debt. A sympathetic review of the record indicates the Veteran has also requested a waiver of the debt, claiming financial hardship. See April 2018 Notice of Disagreement. Because the RO has not yet considered the Veteran's waiver request, the Board does not have jurisdiction of that issue and it is referred for appropriate action. 38 C.F.R. § 19.9 (b); see also 38 C.F.R. § 1.911 (c)(1); VAOPGCPREC 6-98. Whether the overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $38,797.56 was properly created due to a retroactive reduction in the compensation rate to the 10 percent rate as of the 61st date of the Veteran's felony conviction In the April 2018 Notice of Disagreement, the Veteran requested a DRO hearing and an audit of his account. The Board notes that there is no indication in the record that the RO has attempted to schedule the Veteran for a DRO hearing. In remanding this claim for the scheduling of a DRO hearing, the Board acknowledges that the Veteran is currently incarcerated in the Florida state penal system and is not set for release until December 2039. See June 2017 Florida Department of Corrections, "Inmate Population Information Detail." The United States Court of Appeals for Veterans Claims (Court) has held, however, that for incarcerated appellants, the duty to assist requires that VA tailor its assistance to peculiar circumstances of confinement. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Id. at 194 (Steinberg, J., concurring) (adding that his understanding of the Court's holding was that it applied specifically to an incarcerated veteran's request for a hearing). Nonetheless, VA does not have any authority to require a prison to cooperate with the Veteran's request for a hearing. On remand, the Board observes that there is no indication that the Veteran has withdrawn his hearing request for a DRO hearing before the local RO. Thus, in light of VA's duty to assist as discussed in the Court's holding in Woods, the RO must at least attempt to schedule the Veteran for DRO hearing, before his appeal. 38 C.F.R. § 20.700. There is also no indication that the requested audit was completed. As such a remand is warranted to provide the Veteran with an audit. The matters are REMANDED for the following action: 1. Provide the Veteran a paid and due audit of his VA benefits. 2. After the development above is completed, contact the Texas Department of Corrections and attempt to schedule a DRO hearing for the Veteran, if reasonably possible. If a DRO hearing is able to be scheduled for the Veteran, he and his representative should be notified of the date, time and location of this hearing. A copy of that notification letter should also be placed in the claims file. If a DRO hearing is not able to be scheduled, all efforts in that regard and the reasons thereof should be documented in the record. Further, if the Veteran changes his mind and elects not to have this hearing, or fails to report for this hearing on the date it is scheduled, document this also in the claims file. The case should then be processed in accordance with established appellate practices. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.