Citation Nr: A21017577 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 200513-84156 DATE: November 1, 2021 REMANDED Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) additional compensation benefits for the Veteran's spouse in the amount of $15,020.67, to include the question of whether the overpayment was properly created is remanded. REASONS FOR REMAND This appeal comes to the Board of Veterans' Appeals (Board) from an April 2020 decision of the Committee on Waivers and Compromises (Committee) of the Agency of Original Jurisdiction (AOJ). In May 2020, the Veteran timely appealed this decision to the Board of Veterans' Appeals (Board) and the Veteran then elected Direct Review by Veteran Law Judge. See May 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). In this case, the Veteran challenged the validity of the debt contending that he notified the AOJ of his July 2011 divorce at the time his daughter enrolled in college in 2012. He stated that he filled out a new dependency form at that time. He essentially argues that there was VA error as the form was not processed. He also contends that the COVID-19 pandemic has adversely affected his finances. The U.S. Court of Veterans Appeals (Court) has directed that appellate review by Board on the Veteran's waiver claim must be deferred pending formal adjudication of the Veteran's challenge to the validity of the debt by the AOJ. 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). Resolution of the creation issue must precede consideration of the waiver issue. The Board notes that since the Veteran opted into the Appeals Modernization Act (AMA) review system, ordinarily the Board can only consider the record as of the Committee decision. See 38 C.F.R. §§ 20.202 (b)(1), (c)(1), 20.301. However, the Board must remand cases where there is a pre-decisional duty to assist error or correction of any error by the AOJ, other than a duty to assist error, in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the Appellant's claim. See 38 C.F.R. § 20.802(a). Additionally, the standard of "no reasonable possibility" is not fulfilled under the "mere belief that the likelihood" of substantiating the claim is low. See Jones v. Wilkie, 918 F.3d 922, 926 (2019) (interpreting similar language from 38 U.S.C. § 5103A). The remand must specify the action to be taken by the AOJ. In this case, VAOPGCPREC 6-98 (July 24, 1998) essentially indicates that part or all of this debt may not need to be waived because it is invalid, thereby lessening the burden on the Veteran to satisfy the Veteran's claim. The Board, thus, considers it a correctible error by the AOJ in satisfying their regulatory and statutory duties under 38 U.S.C. § 5302(b) and 38 C.F.R. § 1.965 and that correction raises a reasonable possibility of aiding in substantiating the Veteran's claim. Accordingly, remand under the AMA for these and similar circumstances remains appropriate for this specific action. In conjunction with the contention of VA error, the Board notes that in 2012, consistent with the Veteran's contentions that he submitted evidence of his divorce, an August 2012 AOJ letter informed the Veteran that he was being paid additional compensation benefits for one dependent, R., his daughter. This tends to show that he did submit the form. Although the receipt of this form is not reflected in the record, the notice that the Veteran was sent indicated that he was only being paid for his daughter; thus, essentially indicating that he was not married to E., and that the AOJ removed her from the Veteran's award. Then, in February 2013 and March 2013 letter, the Veteran was told that he might be entitled to additional benefits for dependents and to return the attached VA Form 21-686c. The Veteran at this point was divorced (as of July 2011) so he did not return that form. However, in May 2014, it appears the AOJ inexplicably added his ex-wife E. back to his award per a May 2014 letter. Thereafter, August 2014 and March 2015 letters also indicated that E. remained on his award. The Veteran did not submit a VA Form 21-686c until he married N., his current spouse. The matters are REMANDED for the following action: 1. Adjudicate the issue of whether the overpayment was properly created, to include the raised matter of sole administrative error. The AOJ should review and discuss the August 2012, February 2013, March 2013, May 2014, August 2014, and March 2015 letters which discussed dependency benefits. (Continued on the next page) 2. If the creation issue is not resolved in the Veteran's favor, afford the Veteran an opportunity to submit a complete and current financial status report and the waiver claim should be readjudicated. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly, 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.