Citation Nr: 21075141 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 15-18 629A DATE: December 17, 2021 REMANDED The matter of whether the overpayment of Department of Veterans Affairs (VA) compensation benefits 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. The Veteran of entitlement to a waiver of the recovery of the overpayment of VA compensation 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 benefits is remanded. REASONS FOR REMAND In a July 2020 decision, the Board of Veterans' Appeals (Board) determined that the overpayment of VA compensation benefits 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. The Board further determined that the criteria for a waiver of the recovery of the overpayment of VA compensation benefits 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 have not been met. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's decision and remanded the matter to the Board. The JMR initially indicated that although the Board (and VA Regional Office (RO)) indicated that the Veteran was incarcerated through May 2010, there was evidence suggesting otherwise consisting of a May 2010 VA Contact sheet, in which the Veteran's parole officer informed a VA employee that the Veteran was released to the halfway house, [REDACTED], on April 22, 2009, and was then released on parole on September 10, 2009; as well as a Department of Justice Notice of Release and Arrival Form indicates that Veteran's release date was September 10, 2009. The Board notes that this form indicated that this was the expected date that the Veteran was to be released to his mother's residence. The Board observes that there are discrepancies regarding the Veteran's release date from incarceration as indicated above, as well as from the Veteran. Thus, the definitive date of release must be ascertained. The Veteran was incarcerated at the Forrest City Federal Correctional Institution in Forrest City, Arizona. Thus, that facility should be contacted to determine when the Veteran was released from incarceration. The Department of Justice Federal Bureau of Prisons should also be contacted to verify the Veteran's release from incarceration to the halfway house then to a private residence. The RO should then recalculate the Veteran's overpayment based on the verified and definitive date of his release from incarceration. It has also been argued that there were multiple instances of sole VA error in the creation of portions of the debt when the Veteran's son and mother were afforded apportionments of his benefits as well as with the retroactive awards and that these matters need to be addressed. To the extent that errors were made, the Veteran asserts that he had no knowledge of any error with regard to payments and that he did keep the RO apprised of the status of his dependents, to include the date of his mother's debt. He indicated he had no knowledge of the payments by the RO in general and, in part, due to the complexity of the multiple retroactive awards. He also indicated that he was not adequately provided an explanation of the mathematical figures. The Board finds that a complete audit would be useful. The Board further notes that if an overpayment remains valid, the Veteran should be afforded an opportunity to submit a complete and current financial status report. The matters are REMANDED for the following action: 1. Contact the Forrest City Federal Correctional Institution in Forrest City, Arizona, to determine when the Veteran was released from incarceration. 2. Contact the Department of Justice Federal Bureau of Prisons to verify the Veteran's release from incarceration to the halfway house then to a private residence. 3. Review each retroactive VA benefits award in light of the Veteran's release from incarceration. Address each award and adjustment for incarceration in a paid and due audit. The amount of each overpayment as well as the cumulative amount should be clearly stated. If these amount(s) change based on the determination of the date of the Veteran's release from incarceration, that should be clearly indicated. 4. Adjudicate the issue of whether each portion of the overpayment was properly created, to include the matter of sole administrative error with how the adjustments were made when the Veteran was overpaid, taking into consideration the Veteran's allegation that he had no knowledge of any erroneous payments. 5. If any overpayment remains valid, the Veteran should be provided an opportunity to submit a complete and current financial status report. 6. Then, refer any remaining overpayment to the Committee on Waivers and Compromises (Committee) for consideration of a waiver of the recovery thereof. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly 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.