Citation Nr: 21069378 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-08 430 DATE: November 18, 2021 REMANDED Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) benefits in the amount, to include the question of whether the overpayment was properly created, is remanded. REASONS FOR REMAND The Board of Veterans' Appeals (Board) remanded this case in May 2020 for the adjudication of the creation of a debt of $16,322.44; however, this action was incomplete. The following was noted in the Board's remand. In February 2015 and June 2016, VA informed the Veteran that, based on his Social Security number, the Defense Manpower Data Center had identified him as a reservist or guardsman who received training pay concurrently with VA disability compensation during fiscal years (FYs) 2014 and 2015. In September 2015, VA retroactively adjusted the Veteran's compensation benefits based on 23 drill days for FY 2014, and on April 5, 2018, VA retroactively adjusted the Veteran's compensation benefits based on and 68 days for FY 2015. Monthly benefits were terminated December 3, 2015 since the Veteran returned to active duty. An April 19, 2018 Debt Management Center (DMC) letter assessed a debt of $16,322.44. In his August 2018 Correspondence, the Veteran alleged that the overpayment amount was inaccurate. He stated that after returning to active service, he received various checks from VA. However, he threw some of these checks away or shredded them. He requested an audit which confirmed his $16,322.44 debt amount. In December 2019, the Veteran submitted eight uncashed compensation checks to VA. He also stated that he had shredded a few of the checks. In February 2020, VA determined that the amount of uncashed checks totaled $5,284.08. VA also cancelled the shredded checks and stated that any other debt adjustments would be addressed in separate correspondence. In February 2020, the Veteran was informed that his debt would be reduced by $5,284.08 due to the 8 uncashed checks. The Veteran was also told that his audit request also mentioned that he shredded some checks. Tracers were issued for any uncashed checks that were issued to him. The tracers were received by the Department of Treasury, and the uncashed checks were cancelled. Any other debt adjustments would be addressed in separate correspondence and he would be notified of his final debt. In May 2020, the Board remanded this case. Thereafter, in a September 2020 Memorandum, the AOJ determined the following: Validity of debt incurred due to award termination for return to active duty adjustment. The Veteran's award was terminated beginning December 3, 2015 under the VA award dated April 4, 2018, due to the Veteran's active duty service for the period of December 3, 2015 to September 30, 2018. Date of release from active duty was unknown at the date of award action. The Veteran is questioning the validity of the incurred debt, as well as requesting a waiver of the recovery of debt in the amount of $16,322.44 due to severe financial hardship. The Veteran's overpayment debt is due to concurrent receipt of disability compensation benefits and active service pay. 38 C.F.R. §§ 3.654 (c), 3.700 (explaining that 38 U.S.C. § 5304 (c) prohibits the receipt of VA disability compensation benefits for any period for which the person receives active service pay, which includes active duty for training or inactive duty for training). Award termination for the period beginning on December 3, 2015 was processed correctly. The above-mentioned action resulted in a total debt of $16,322.44. Accordingly, the debt amount is deemed valid and was not the result of a VA error. The Board notes that there is no further action after this Memorandum and the Memorandum did not address the overpayment adjustment due to the 8 returned checks. Moreover, there was no additional action regarding the tracers that were issued for additional checks. In light of the foregoing, additional development on the creation issue is warranted. Since it appears clear that the Veteran's debt has been reduced and the Veteran had been told that there may be further adjustments and that he would be notified of the final debt, upon such notification, the AOJ should consider if a request for waiver of the debt may be made at that time, given all the adjustments in this case over several years. The matter is REMANDED for the following actions: 1. Address the appropriate continued development on the creation issue and address whether there was any additional reduction in the overpayment due to the tracers received by the Department of Treasury and the uncashed checks that were cancelled. (Continued on the next page) Determine the final amount of the debt following the $5,284.08 deduction and any further deduction pursuant to Paragraph #1. If there was no additional deduction from Paragraph #1, that should be clearly indicated. The Veteran should then be notified of the final amount of the debt. The AOJ should consider if a request for waiver of the debt may be made at that time, given all the adjustments in this case over several years. 2. Then, adjudicate the issue of whether the overpayment was properly created. If the claim continues to be denied, including on this basis, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC) which addresses both the creation and waiver issues and afford them the opportunity to respond. J. Kirby Veterans Law Judge Board of Veterans' Appeals J. Connolly, Attorney for the Board Department of Veterans Affairs 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.