Citation Nr: 21073906 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-04 617A DATE: December 13, 2021 REMANDED Whether a waiver of recovery of the overpayment of Department of Veterans Affairs (VA) pension benefits is warranted, to include the question of whether the overpayment was properly created, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from June 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the December 2015 Decision on Waiver of Indebtedness by the VA Committee on Waivers and Compromises (COWC). The Veteran and his wife provided hearing testimony before the undersigned Veterans Law Judge in November 2021. A transcript of that hearing is within the record before the Board. As noted above, the Veteran has appealed the COWC denial of a waiver. However, a review of the file reveals that he has made several arguments challenging the proper creation of the debt. At the November 2021 hearing, both the Veteran and his wife suggested VA is at fault in the creation of this debt. Moreover, in an earlier November 2017 handwritten statement, the Veteran indicated, "So I am appealing the reason they say I owe the money not the waiver." The RO has not adjudicated the matter of whether this debt was properly created. As it appears the Veteran has challenged the proper creation of the debt at issue, further appellate review by the Board on the Veteran's waiver claim must be deferred pending formal adjudication of his challenge to the validity of the debt. 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. For a determination that the overpayment was not properly created such that the debt was not valid, it must be established that the Veteran was either legally entitled to the benefits in question or, if the Veteran was not legally entitled, then it must be shown that VA was solely responsible for the Veteran being erroneously paid benefits. Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. VAOPGCPREC 2-90 (July 17, 1989); 55 Fed. Reg. 27757 (1990). Sole administrative error connotes that the Veteran neither had knowledge of nor should have been aware of the erroneous award. Further, neither the Veteran's actions nor his or her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C. § 5112 (b)(9), (10); 38 C.F.R. § 3.500(b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). Thus, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary is unaware that the payments are erroneous. The United States Court of Appeals for Veterans Claims ("the Court") noted that, "[s]tated another way, when an overpayment has been made by reason of an erroneous award based solely on administrative error, the reduction of that award cannot be made retroactive to form an overpayment debt owed to VA from the recipient of the erroneous award." Erickson v. West, 13 Vet. App. 495, 499 (2000). The Veteran contends that VA is at fault for paying the pension benefits when the Veteran was not entitled to them for several years. These questions have not been addressed by the RO at any time. Thus, remand is unavoidable. The matter is REMANDED for the following action: Adjudicate the issue of whether the overpayment was properly created, to include the raised matter of sole administrative error. 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. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.