Citation Nr: 21074170 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-56 171A DATE: December 14, 2021 REMANDED Challenges to the propriety of the creation of an overpayment utilized by the Department of Veterans Affairs (VA), Regional Office (RO), to offset remittance of unreimbursed medical expenses incurred in 2013 are remanded. REASONS FOR REMAND The Veteran, a former VA nonservice-connected pensioner, had active duty from September 1952 to June 1954, during the Korean war. Regretfully, he passed away in March 2014. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on her appeal of a February 2017 RO's notification letter issued after the Appellant had sought to proceed as a substitute claimant with regard to the Veteran's claim for reimbursement of his and the Appellant's unreimbursed medical expenses incurred in 2013. By way of a background, in August 2008, the Veteran filed a claim seeking service connection for various disabilities or, in alternative, a VA nonservice-connected pension. Under 38 U.S.C. § 1513(a), veterans of a period of war who are at least 65 years old are eligible for a nonservice-connected VA pension. In July 2009, the RO issued a rating decision denying the Veteran service connection for his disabilities but finding that the Veteran was both "eligible" and "entitled" to a VA nonservice-connected pension under § 1513(a). However, VA's actual disbursements of VA nonservice-connected pension ensue from the needs-based nature of the pension program, which poses an additional requirement that depends on veterans' financial status. Thus, there is a distinction between "eligibility" for a pension and "entitlement" to disbursement of pension funds. Accordingly, a veteran might be "eligible" for a pension in the sense that (s)he meets § 1513 requirements but the veteran might still not be "entitled" to VA's disbursement of pension funds during a particular period of time because (s)he did not establish that, during this period of time, his/her financial circumstances met the VA need-based criteria. This is so because a determination of a veteran's financial need is based on his/her "countable income." The phrase "countable income" refers to a veteran's annual income, as well as the annual income of his/her dependent(s). Accordingly, if a veteran's countable income during a particular year exceeds the maximum annual pension rate (MAPR) applicable to the veteran's circumstances, then the veteran is deemed only eligible but not entitled to VA's disbursements of pension during the period at issue. Same as the amounts of disability compensation benefits are revised on a yearly basis (so that the revised rates are effective from December 1st of the revision year and remain effective to November 30th of the following year), MAPRs are revised every December 1st and remain effective to November 30th of the following year. Therefore, veterans have their relevant MAPR reduced dollar-for-dollar by the amount of their and their dependents' countable income. In other words, VA's pension system is an equalizing scheme, which ensures that a VA pensioner would get his/her maximum MAPR amount if (s)he and his/her dependents have no countable income at all but if they have such a countable income then the veteran's pension would be equal to the funds that (s)he and his dependent(s) are short of for the purposes of the veteran's relevant MAPR. To illustrate, if a veteran's MAPR is $600 per month, and (s)he is entitled to an upward adjustment $50 per month based on his/her dependent, but the Veteran receives $350 monthly as his Social Security Administration (SSA) benefits, and his/her dependent receives $150 per month in SSA benefits and earns $125 per month, then the veteran's monthly pension would only be $25 ($600 + $50 $350 $150 $125). However, a pension calculation does not stop at such basic variables as SSA benefits and wages; rather, the pension amount could be affected by multiple other variables. Moreover, not every variable factored into a pension determination triggers the process of deducting the amount of the variable at issue from MAPR, and there are variables that are added to MAPR: to further its equalizing nature. One such variable that requires addition to MAPR (or subtraction from the countable income since, mathematically, both functions lead to the same result) is the pensioner's and his/her dependents' unreimbursed medical expenses. Hence, if the veteran and his dependents incur such medical expenses during a given year, and the veteran reports such expenses to VA, VA retroactively factors the reported expenses into its MAPR calculation and then remits these funds to the veteran. Such a process usually takes place in January because veterans and VA take a retrospect look at such unreimbursed medical expenses that veterans and their dependents accrued during the preceding calendar year. However, remittance of unreimbursed medical expenses is not performed on a dollar-for-dollar basis. Rather, the amount of remittance is equal to the difference between (a) the actual amount of the unreimbursed medical expenses incurred during the reported year and (b) five percent of the relevant MAPR applicable to the requesting veteran during the same reported year. Here, since the Appellant was the Veteran's dependent spouse during the period when he was receiving his nonservice-connected VA pension, his yearly MAPR was: (a) upwardly adjusted to account for the Appellant; and simultaneously (b) decreased to account for his SSA benefits and wages, and for the Appellant's wages and SSA benefits. Since the deductions caused by the Veteran's and Appellant's SSA benefits were rather substantial in comparison to the Veteran's MAPR (thus leaving him a very small amount of post-deduction pension), in January of every year, the Veteran reported his and the Appellant's unreimbursed medical expenses incurred during the preceding calendar year to obtain remittance. Correspondingly, in January 2014, i.e., two months prior to his death, the Veteran reported his and the Appellant's unreimbursed medical expenses that had been incurred in 2013 utilizing the same VA form he had used during the prior years. VA did not remit these reported unreimbursed medical expenses prior to his death. The Veteran's January 2014 application for remittance of his and the Appellant's unreimbursed medical expenses incurred during 2013 qualified as a "claim," even though his claim was not reduced to terms commonly used by VA claimants seeking VA benefits that have not been awarded previously, e.g., benefits related to a claim for service connection for a new disability or for an increased rating for a service-connected disability. Rather, the Veteran's claim was substantively analogous to that for a retroactive upward adjustment that a VA beneficiary might seek within a year after his/her marriage or within a year of having his/her child attend a VA-approved educational institution. To avoid unnecessary confusion, the Board refers to this type of a claim as a claim to correct the record. In April 2014, the Appellant filed the Veteran's death certificate, applied for his burial benefits, and in addition applied for a VA pension for herself: in light of her newly-developed status as the Veteran's surviving spouse who was also eligible for a VA pension of her own due to the Veteran's death, but only if she could show that the Appellant's own countable income was low enough for the purposes of her own MAPR. In May 2014, that is, 45 days after the Veteran's death, an RO officer called the Appellant and executed a Report of General Information reflecting the RO officer's understanding of the totality of Appellant's claims. The RO officer's report indicated that the Appellant did not wish to seek service connection for the cause of the Veteran's death; however, the RO officer noted that the Appellant was seeking unspecified "accrued benefits." Having the benefit of hindsight, the Board acknowledges that the Appellant's May 2014 reference to "accrued benefits" expressed her desire to act as a substitute claimant, that is, to continue litigating the Veteran's claim to correct the record for the purposes of obtaining remittance of his and the Appellant's unreimbursed medical expenses incurred during 2013. It appears that the Appellant's use of the phrase "accrued benefits" to define her claim to correct the record was rooted in the language of 38 U.S.C. § 5121a, which states that if a claimant dies while his/her claim is pending, to include pending before VA, an appropriate living person, e.g., the claimant's surviving spouse, may not later than within one year from the date of the claimant's death be adjudicated as a substitute claimant for the purposes of litigating the deceased original claimant's application to its final adjudication. Regretfully, the meaning of the Appellant's phrase "accrued benefits" was not understood by the RO officer who executed the May 2014 Report of General Information. Accordingly, the RO remained unaware of the Appellant's desire to continue seeking remittance of her and the Veteran's unreimbursed medical expenses incurred in 2013 and perceived the Appellant's statement as expressing her desire to seek "accrued benefits" different from remittance of a portion of the nonservice-connected pension due to the Veteran with regard to unreimbursed medical expenses that he and the Appellant had incurred in 2013. As it commonly happens with all such misunderstandings, the miscommunication between the Appellant and RO began to mushroom once seeded. In July 2014, the RO issued the Appellant a notification letter informing her that "[a]ccrued benefits ([i.e.,] benefits due and not paid to the veteran at the time of death) [could] not be paid as there [were] no accrued amounts available." Thus, the July 2014 notification letter demonstrated that the RO construed the Appellant's request as anything but a claim to correct the record that the Veteran filed in January 2014 in order to obtain remittance of his and the Appellant's unreimbursed medical expenses incurred in 2013. Plus, amplifying the miscommunication, the July 2014 notification letter also combined all other determinations with the above-quoted statement, yielding a jumbled wad of findings incomprehensible to a lay person. For instance, the RO also reiterated its understanding that the Appellant was not seeking service connection for the cause of the Veteran's death and, in addition, pointed out that the Appellant was "eligible" to a VA pension as the Veteran's surviving spouse but not "entitled" to disbursements of pension funds because her own SSA benefits were exceeding her relevant MAPR, which meant that unless she could establish a decrease of her own "countable income" by submitting evidence of her own unreimbursed medical expenses the Appellant's "eligibility" to a VA pension would be yielding $0 in "entitlement" that VA could disburse. Since the RO's July 2014 notification letter referred to the Appellant's election not to pursue a claim for service connection for the cause of the Veteran's death, as well as to the Appellant's own unreimbursed medical expenses, she conceded in her August 2014 Statement in Support of Claim that the Appellant "did not understand" the rationale of the RO's July 2014 notification letter. Conflating the legal concept of a claim for service connection for the cause of the Veteran's death with the accounting basis for her lack of entitlement to her own VA pension, and mixing in her erroneous belief that the RO had addressed but somehow denied her request for the status of a substituted claimant (which she was seeking in order to continue litigating the Veteran's January 2014 claim to correct the record for the purposes of obtaining remittance of unreimbursed medical expenses that had been incurred by him and the Appellant in 2013), the Appellant expressed her bewilderment with the RO's findings and pointed out that she had requested substitution 45 days after the Veteran's death, even though she had the right to move for substitution during 365 days following the Veteran's death. In December 2014, the RO issued the Appellant another notification letter reiterating the RO's July 2014 letter. The reiteration demonstrated, once again, that the RO still failed to realize that the Appellant was seeking remittance of the unreimbursed medical expenses that she and the Veteran had incurred in 2013. In April 2015, apparently frustrated by her inability to convey the nature of her request, the Appellant filed another lay statement. Reducing her request to terms that could not be misunderstood, the Appellant closed her lay statement with: I ask for no more than I am entitled to. Expenses that was [sic] paid for medical expenses. This is the same form my husband and I completed, signed and mailed to VA for some reimbursement in previous years. It is unfortunate that someone did not review these expenses before the death of my husband. Meanwhile, a chain of different communications between the Appellant and the RO was taking place, during which she submitted her own unreimbursed medical expenses incurred in 2014: in a bid to demonstrate that her own countable income was sufficiently low and entitled her to at least some VA pension. The RO determined that, even after the Appellant's own unreimbursed medical expenses, her countable income remained above her applicable MAPR due to the amount of her SSA benefits. In May 2015, the Appellant sought to commence another and qualitatively different claim to correct the record: this time, by seeking remittance of her and the Veteran's unreimbursed medical expenses that had been incurred in 2012 but had been left unreported by the Veteran in January 2013. In June 2015, upon construing the Appellant's May 2015 submission as her attempt to lower her own post-unreimbursed-medical-expenses countable income in 2014 through addition of those unreimbursed medical expenses that she and the Veteran had incurred in 2012, the RO issued the Appellant another notification letter stating that until the Veteran's death the Appellant was not entitled to her own VA pension. Simply put, the record demonstrates that RO misunderstood the gist of the Appellant's applications time and again. Given the paternalistic nature of VA laws, the Board notes its concern with the RO's failure to understand and separate the Appellant's claims, especially since her submissions were reasonably clear. A year and a half passed by. In October 2016, having still not received any response from the RO as to her application to proceed as a substitute claimant for the purposes of the Veteran's January 2014 claim to correct the record in order to obtain remittance of his and the Appellant's unreimbursed medical expenses that had been incurred in 2013, the Appellant made another attempt to clarify her claim. Desperate to make the RO understand what she had been trying to convey for over two and a half years, the Appellant filed a two-page submission. The first page was a copy of the Veteran's request for remittance filed in January 2014, i.e., his itemized report of his and the Appellant's unreimbursed medical expenses incurred in 2013. The second page was the Appellant's brief explanation of the same. In February 2017, the RO issued the Appellant another notification letter that, admittedly, gives the Board a pause. Construing the Appellant's October 2016 two page application as the Appellant's informal Notice of Disagreement (NOD), the RO informed the Appellant that her "NOD" was untimely because more than one year had expired from the date of the RO's issuance of its December 2014 notification letter, which in February 2017 the RO inexplicably construed as the final disposition of her claim, even though the December 2014 notification letter demonstrated the RO's misunderstanding of the nature of the Appellant's request to act as a substitute claimant as to the Veteran's January 2014 claim to correct the record. Moreover, the RO's February 2017 notification letter stated that, if the Appellant was seeking some unspecified new "accrued benefits" on the Veteran's behalf, her October 2016 application was untimely because the Veteran had passed away more than a year prior. Given that the Appellant's intent to proceed as a substitute claimant for the purposes of her litigation of the Veteran's January 2014 claim to correct the record was discernible since 45 days from the date of the Veteran's death, and the RO relied on its wholly inapposite December 2014 notification letter to dismiss the Appellant's October 2016 application as an untimely "NOD" and, in addition, to deny "reopening" of her never-previously-adjudicated claim, the Board finds that for almost three years (i.e., from April 2014 to February 2017) the RO unduly led the Appellant to believe that her application to act as a substitute claimant for the purposes of prosecuting the Veteran's claim was pending before VA. Thus, the Board construes the RO's actions as de facto granting the Appellant a substitute claimant status. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009). Therefore, the Board recognizes the Appellant as the Veteran's substitute claimant. (Moreover, since the RO's fleet of notification letters have never addressed her claim to correct the record, the Appellant's actions could neither be untimely nor be subject to a final denial.) In April 2017, the Appellant being understandably bewildered with the RO's response filed VA Form 21-0589 NOD which was timely versus the response, i.e., the RO's February 2017 notification letter. In her NOD, the Appellant requested a review by a Decision Review Officer (DRO) and reiterated the same contentions she had been reiterating for over three years. During a July 2017 telephonic communication with an RO officer, the Appellant reiterated the same contentions once again. However, the RO officer again paraphrased the Appellant's request as her application for "accrued benefits." That said, it appears that regardless of the July 2017 RO officer's usage of the phrase "accrued benefits," the DRO understood the gist of the Appellant's claim seeking to correct the record for the purposes of obtaining a remittance. Therefore, in September 2017, the RO conducted an audit of the Veteran's account. However, the purpose of the audit was not only to determine the amount of remittance due to the Appellant in her capacity as a substitute claimant. Instead, VA conducted an audit of the entire Veteran's record from February 2010 through January 2014 and docketed the audit report and accompanying calculations on September 12, 2017, under the heading "User Calculation." Once the audit report was produced, the DRO issued the Appellant a Statement of the Case (SOC). The DRO noted that the audit revealed that, from February 1, 2010, to December 31, 2012, the Veteran had been overpaid $3,238.40. Further, the DRO stated that, in 2013, $782 had been withheld from the Veteran's pension toward "recoupment" of this $3,238.40 "overpayment." At this point, the Board finds it warranted to enter two clarifications, one about accounting and another about VA laws of overpayment. The purpose of an audit is to compare the amounts actually utilized to those that should have been utilized. The September 2017 audit consisted of three pages. The first reflected a chain of calculations, the nature of which the Board could not establish with a sufficient degree of certainty, albeit the Board could not rule out that these calculations reflected the Veteran's and the Appellant's medical expenses reported as to 2010 to 2012. (The mode of calculations was akin to that produced by a cash register.) The second page, titled "Manual Calculation for 403 Screen," reflected an audited determination as to the amounts of monthly VA pension that the Veteran should have been paid. The third page contained a table with a heading reading, "Monthly Computation of Cost Avoidance/Overpayment" and indicating that: (a) from February 1, 2010, to January 31, 2011, the Veteran was overpaid $2,964; (b) from January 18, 2012, to November 30, 2012, the Veteran was overpaid $250.40; and (c) from December 1, 2012, to December 31, 2012, he was overpaid $24. In sum, the table showed that, from February 1, 2010, to December 31, 2012, the Veteran was overpaid $3,238.40 ($2,964 + $250.40 + $24). In addition, the same table showed that the Veteran was underpaid: (a) $693 from January 1, 2013, to November 30, 2013; (b) $45 in December 2013; and (c) $44 in January 2014. Hence, from January 1, 2013, to January 31, 2014, the Veteran was underpaid $782 ($693 + $45 + $44), which meant that the DRO referred to this underpayment as "recoupment" upon incorrectly stating, with a minor error, that the "recoupment" took place in 2013, while in actuality the underpayment continued from January 1, 2013, throughout January 31, 2014. Now, changing its hat from that of an accountant to that of a jurist, the Board notes that, in terms of procedural due process, an overpayment is properly created if an RO upon recognizing that an overpayment might have occurred issues a notice to the potential VA debtor proposing to create an overpayment and stating both factual and legal bases for such a proposal. Simultaneously with making such a proposal, the RO should avail the proposed debtor to a meaningful opportunity to reply. After the proposed debtor replies or his/her time to reply expires, the RO is required to issue the debtor a final action notice informing him/her of a charge based on a retroactive change in the debtor's entitlement to VA benefits. After the RO issues such a final action notice, VA Debt Management Center (DMC) issues the debtor a demand letter stating the exact amount of debt ensuing from the final action notice and informing the debtor of his/her right to seek a waiver of the overpayment debt, including the 180-day period of limitation to seek a waiver and the fact that the debtor's filing of a waiver claim within 30 days from the date of issuance of the demand letter bars VA from recoupment of the overpayment debt until the final adjudication of his/her waiver claim. A failure to adhere to these due process requirements renders an overpayment improperly created. Therefore, funds withheld pursuant to an improperly created overpayment become subject to remittance. That said, because the act of creating an overpayment is not subject to time limitations or double jeopardy constraints, VA may properly create and charge an overpayment after remittance of the funds wrongly withheld based on an overpayment improperly created. However, the new charge could only be made against a proper entity in the event the juridical status of the debtor has changed in the interim, e.g., if the debtor who is a natural person passes away and the debtor's status has shifted to his/her estate, a juridical entity. Here, the Board's review of the record has established that, in January 2012, the RO issued the Veteran a notification letter proposing to: (a) retroactively reduce the amount of the Veteran's nonservice-connected VA pension from $265 to $263 per month from November 30, 2011, to December 31, 2011, because the Veteran's and the Appellant's SSA benefits, combined, were two dollars more than what VA estimated; and (b) withhold his VA pension during a portion of January 1, 2012, based on the Veteran's presence in a nursing home for more than one month. The record shows that the Veteran had not responded to the RO's January 2012 proposal. Therefore, in March 2012, when the Veteran's period to respond expired, the RO issued him a final action notice to that effect, thus properly creating an overpayment. Jointly with the RO's final action notice, i.e. in March 2012, DMC issued the Veteran a demand letter stating that his overpayment debt arising from the RO's final action notice was in the amount of $131.53. Accordingly, the amount of $131.54 was properly withheld from the Veteran later in 2012. However, and critical here, no other DMC's demand letter or a similar document generated by the RO was issued. Moreover, no other notice of a proposal to create another overpayment was issued by the RO. And, to add, no final action notice was issued either. It follows that the RO's September 2017 audit revealed and the DRO's SOC confirmed that the charge of the $3,238.40 overpayment debt was procedurally deficient. Indeed, the Veteran never learned of the RO's intent to charge him, was deprived of an opportunity to respond, was left uninformed of the RO's final action charging him with an overpayment, never knew the amount of his overpayment debt, and denied an opportunity to seek a waiver. Correspondingly, the $3,238.40 overpayment was invalid, and in sync the underpayment of $782 (performed by VA in 2013 and January 2014) was a violation of the Veteran's due process rights. (Moreover, it is not immediately apparent to the Board how an overpayment could have been charged and partially withheld in 2013 if the audit upon which the RO relied was generated only in September 2017, that is, four years and nine months after the audited amount was charged and a partial recoupment was executed.) Finally, the implication of the DRO's statements (about the Veteran's $3,238.40 overpayment and "recoupment" of $782 from the Veteran) was that the Appellant was not entitled to remittance for her and the Veteran's unreimbursed medical expenses incurred in 2013 on the grounds that the amount of the "remainder" of the Veteran's overpayment that was left "unrecouped" after VA executed the partial "recoupment" of $782 was equal to or exceeded the amount of the remittance that might have been due to the Appellant. Simply put, the DRO's statement could be reduced to an opinion that, since the Veteran died while still owing the "remainder" to VA, VA could offset this "remainder" by using the Appellant's remittance. VA's position was without a basis both mathematically and legally. First, putting its accounting hat back on, the Board examines VA's mathematical position. Had the Veteran's $3,238.40 overpayment been properly created in terms of due process requirements and, in addition, had the partial "recoupment" of $782 been duly conducted, the amount of the Veteran's "remaining" debt equal to the amount of post-partially-recouped overpayment should have been $2,456.40 ($3,238.40 $782). Thus, the Appellant would not have been entitled to remittance of her and the Veteran's unreimbursed medical expenses that had been incurred in 2013 only if such unreimbursed medical expenses after being reduced by five percent of the Veteran's MAPR applicable to him in 2013 would be $2,456.40 or less. Accordingly, the Board finds it warranted to conduct a few basic calculations to determine whether the DRO's position taken in the SOC was at least plausible. As noted supra, VA revises its pension MAPRs each December 1st. Therefore, from during the calendar year 2013, there were two rates applicable to the Veteran (with the Appellant being factored in as his dependent spouse). One MAPR applied from January 1, 2013, to November 30, 2013, and another MAPR applied from December 1, 2013, to December 31, 2013. The first MAPR was $16,324 per annum, see https://www.benefits.va.gov/PENSION/rates_veteran_pen12.asp, while the second MAPR was $16,569 per annum, see https://www.benefits.va.gov/ PENSION/rates_veteran_pen13.asp. Hence, during the January 1, 2013, to December 31, 2013, period the Veteran's MAPR was equal to $16,344.42 ($16,324 / 12 x 11 + $16,569 / 12 x 1) because there are 12 months in any given year, and the January 1, 2013, to December 31, 2013, period consisted of 11 months that implicated the first MAPR and one month that implicated the second MAPR. Since five percent of 100 percent is one-twentieth part of 100 percent, five percent of the Veteran's January 1, 2013, to December 31, 2013, $16,344.42 annual MAPR was $817.22 ($16,344.42 / 20). The January 2014 itemized list of the Veteran's and Appellant's unreimbursed medical expenses incurred in 2013 showed that these expenses were in the amount of $5,001.14. Hence, assuming that all of the Veteran's and Appellant's unreimbursed medical expenses incurred in 2013 were amenable to remittance, the amount of remittance should have been $4,183.92 ($5,001.14 $817.22). With these basic calculations completed, the Board now returns to the DRO's implication that the Appellant was not entitled to any remittance that she had been seeking on the Veteran's behalf because the Veteran's debt to VA prior to his death was equal to or exceeded the remittance that the Appellant was requesting. Given that $4,183.92 (due to the Appellant as the Veteran's remittance) exceeds $2,456.40 (which would have been the "remainder" of the Veteran's post-partial-recoupment overpayment had the overpayment been properly created, and a partial recoupment been properly conducted), the Appellant should still have received $1,727.52 ($4,183.92 $2,456.40) in remittance, that is, unless the DRO determined that some of the Veteran's and Appellant's unreimbursed medical expenses incurred in 2013 were not amenable to remittance, and such not-amenable-to-remittance expenses were at least in the amount of $1,727.52. Because no statement in the DRO's SOC reflected on the nature of the Veteran's and Appellant's unreimbursed medical expenses incurred in 2013, the Board is without a basis to speculate that the DRO's statements were rooted in the aforesaid calculations. Hence, the mathematics of the DRO's findings are non sequitur. Further, the SOC stated that the RO's December 2014 notification letter was a decision that became final and could not be reopened since the Appellant has not provided new and material evidence in support of her claim for "accrued benefits" and has not pointed out a clear and unmistakable error (CUE) on the part of VA. However, because the Appellant's claim for remittance of her and the Veteran's unreimbursed medical expenses incurred in 2013 had never been adjudicated until the DRO addressed it in the SOC, the rationale of the DRO's reference to CUE and new and material evidence escapes the Board. In November 2017, the Appellant filed her VA Form 9 Substantive Appeal and requested a Board hearing. In September 2021, the Appellant testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing has been associated with the claims file. During her testimony, the Appellant again expressed her bewilderment with the fact that the Veteran's January 2014 claim to correct the record, i.e., his itemized list of the Appellant's and the Veteran's medical expenses incurred in 2013, has not yielded the requested remittance seven years and eight months later. The Board notes that in VA overpayment matters the right to a Board hearing extends only to waiver claims, while challenges to the propriety of the creation of an overpayment are resolved on the evidence of record. 38 C.F.R. § 1.911(c)(2). However, while the RO styled the Appellant's challenges as addressing VA's overpayment of the Veteran's pension, the true gist of her challenges relates to correction of the record for the purposes of her receipt of remittance. Simply put, the overpayment aspect operates as, essentially, VA's attempt to raise an affirmative defense in response to the Appellant's claim. The Board now turns to its legal analysis of the Appellant's claim (and of VA's position articulated by the DRO in the SOC). Here, such an analysis is closely intertwined with key concepts of the estate law. Since estate law rarely makes an appearance in VA matters, the Board finds it warranted to summarize these key concepts prior to reaching the Board's conclusions. Once a person dies and ceases to exist as a natural person, both his legal rights and obligations transfer to his/her estate, which is a juridical entity. Notably, an estate might not come into existence at all. For instance, if the entirety of the deceased's assets were held as personal property subject to joint tenancy, e.g., as joint bank accounts or as real estate subject to tenancy by entirety (which means that the deceased bought a house in his/her name and the name of his/her spouse), the legal instruments underlying such transactions, e.g., a real estate deed and bank account certificate, would qualify for estate law purposes as quasi-testamentary instruments that automatically vested all the rights in the person who survived the deceased. Therefore, if the deceased's entire property is disposed of through quasi-testamentary instruments, no estate comes into existence and no property could be reached by the creditors of the deceased unless the creditors establish that the quasi-testamentary transactions were executed by the deceased for the purposes of defrauding his/her creditors. If the deceased leaves property other than that subject to quasi-testamentary instruments, e.g., if the deceased leaves a car that was purchased solely in his/her name, such property becomes subject to distribution through the probate process. There are two types of probate proceedings: testamentary (meaning that the deceased left a will that was duly executed under the laws of his/her State of residency) and an intestate process, which means that the diseased passed away without executing a will, and the intestacy laws of his/her State of residence at the time of his/her death would govern the distribution process. A probate action must be adjudicated by the Surrogate Court of the jurisdiction of the deceased's residency implicated by the will or his/her intestate death. The probate process allows the Surrogate Court to confirm the designated executor who was named in the will, which allows the executor to conduct the distribution of the estate's property according to the will (and codicils, if any). Alternatively, in an intestacy scenario, the Surrogate Court would appoint an estate administrator to distribute the estate's property under the State's laws. Upon completion of the distribution process and the executor's or administrator's accounting for the transactions that (s)he performed in such capacity, the estate "closes," i.e., ceases to exist as a juridical entity. Furthermore, while an estate could be "reopened," a creditor of the deceased who could have been paid but was not paid by the estate may seek reopening of the estate for the purposes of recouping a debt only if the creditor could establish that (s)he/it neither knew nor could have known of the deceased's death. Here, since the Appellant promptly filed the Veteran's death certificate, VA cannot reopen the Veteran's estate if the Veteran's estate had been created but has closed. Moreover, unless an undue dealing between an executor/administrator of the estate and an estate's beneficiary is established, the creditor has no right of action against the beneficiary. Simply put, an estate's beneficiaries are not responsible for any errors of an executor or an administrator of the estate, e.g., for failure to pay the estate's debt to a certain creditor. Thus, the rights and obligations of different entities, e.g., those of the Appellant and of the Veteran's estate, are not fungible, even if these rights and obligations end up being expressed in dollar bills that are fungible. Accordingly, the Board addresses, separately: (a) the rights of the Appellant; and (b) the rights of VA. Here, the Appellant has two entitlements. One of them is in her former capacity as the Veteran's dependent spouse, and the other is in her capacity as a substitute claimant who had taken over litigation of the Veteran's claim to correct the record. The former ensued from the fact that, when VA was improperly withholding $782 from the Veteran's pension in 2013 and during January 2014, the Appellant as the Veteran's dependent spouse had the right to these funds because, back then, she depended on the Veteran's VA pension for her own subsistence. Hence, these funds are due to the Appellant because they were withheld from the Veteran without proper due process. The Appellant's second entitlement ensued from the Veteran's right to remittance of his unreimbursed medical expenses, and the Appellant taking over the Veteran's litigation of his claim to correct the record. Since the Veteran filed this claim before he passed away, the sole reason he was not reimbursed was the Veteran's passing before VA acted. In other words, the reason for the claim being still in active status was VA's laxness. Because the Veteran's passing could not affect his right to be reimbursed, the Appellant is entitled to remittance of these funds. Independently and separately from the Appellant's entitlements, VA is entitled to recoupment of the Veteran's $3,238.40 debt. However, the sole proper entity against whom VA could at this juncture commence its action for recoupment is the executor or administrator of the Veteran's estate, that is, if such an estate came into existence and has not yet closed. Notably, the Board is without a basis in the record to conclude that the Appellant is or was the executor or administrator of the Veteran's estate. Indeed, a person different from the Appellant, e.g., a child of the Veteran or his trusted friend could have been appointed to act as the executor or administrator. In sync, the Board is without a basis to hypothesize that the Appellant was a beneficiary of the Veteran's estate who had undue dealings with the estate's executor or administrator. In fact, the record offers the Board no basis to speculate that the Appellant was even "a" beneficiary of the Veteran's estate. Indeed, assuming, arguendo, that the Veteran died testate, he might have willed his property to persons other than the Appellant, e.g., his friends, children, other relatives, charitable organizations, etc., and left the Appellant only the property, if any, that vested in her under quasi-testamentary instruments. Therefore, those challenges that VA might encounter in connection with recouping the Veteran's $3,238.40 debt are entirely self-inflicted by VA: first, through violations of the Veteran's due process rights and then through VA's inaction that exposed VA to obstacles substantively identical to those commonly faced by unduly procrastinating creditors under the doctrine of latches. Accordingly, a remand is required. In conclusion, the Board takes this opportunity to thank the Appellant for the Veteran's honorable service and to express the Board's condolences for her loss. The matters are REMANDED for the following action: 1. Remit $782 (withheld, without proper due process, from the Veteran during the period from January 1, 2013, throughout January 31, 2014) to the Appellant. 2. Determine the amount of remittance due to the Appellant independently from the $782 remittance, i.e., in her capacity as the Veteran's substitute claimant as to the Veteran's January 2014 claim for remittance of his and the Appellant's unreimbursed medical expenses incurred during the calendar year 2013, by taking the following actions: a. Examine the Veteran's itemized list of his and the Appellant's unreimbursed medical expenses incurred during the calendar year 2013 (a duplicate of the list was docketed on October 28, 2016, under the heading reading, "VA 21-8416") in order to determine which, if any, expense(s) in the list is/are not amenable to remittance. b. Calculate the amount of remittance due to the Appellant by deducting: (i) five percent of the Veteran's MAPR applicable during calendar year 2013 from (ii) the sum of all medical expenses included in the Veteran's itemized list and allowed for reimbursement. Follow the process employed by the Board in its sample calculation that yielded a remittance in the amount of $4,183.92 (albeit without a determination of which medical expenses, if any, might be not amenable to remittance). 3. Remit the amount determined pursuant to Step 2(b) to the Appellant. 4. Accompany the remittance conducted pursuant to Step 3 with an Appeal Notification Letter explaining whether any medical expenses were deemed not amenable to remittance (and the legal grounds for such conclusions) and how the amount of the remittance was calculated. The language of the Appeal Notification Letter should be amenable to a reasonable lay person's understanding and all mathematical functions employed in the calculations should be reduced either to string calculations akin to those utilized by the Board in this Remand Order or to an easily understandable table analogous to one used in the Veteran's itemized list. 5. Determine whether the Veteran's estate came into existence and has not yet closed. 6. In the event the estate came into existence and has not been closed, serve the executor or the administrator of the estate duly appointed by a Surrogate Court of proper jurisdiction with process enabling an action for recoupment of the Veteran's overpayment in the amount of $3,238.40. 7. In the event it is determined that no estate came into existence or that the estate came into existence but has closed, determine proper accounting means to address the loss of $3,238.40 ensuing from violation of the Veteran's due process rights. 8. The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 9. The law requires that all claims that are remanded by the Board of Veterans' Appeals for an additional development must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. DelYvonne M. Whitehead Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, 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.