Citation Nr: 21077451 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 13-32 226 DATE: December 29, 2021 ORDER Challenges to the propriety of the creation of the portion of the Veteran's overpayment, which arose from suspension of his Department of Veterans Affairs (VA) pension during the Veteran's incarceration, are denied. REMANDED Challenge to the propriety of the creation of the portion of the Veteran's overpayment related to the retroactive removal of C.M. as his dependent minor child from the Veteran's VA pension is remanded. Challenge to the validity of the amount of the portion of the Veteran's overpayment related to the retroactive removal of C.M. as his dependent minor child from the Veteran's VA pension is remanded. Challenge to the validity of the amount of the portion of the Veteran's overpayment related to his incarceration for a period in excess of 60 days based on his conviction of a felony offense is remanded. Claim for a waiver of the Veteran's combined overpayment debt is remanded. FINDING OF FACT Suspension of the Veteran's VA pension was triggered on October [REDACTED], 2011, i.e., on the 61st day of his incarceration, which resulted from his conviction of murder. CONCLUSION OF LAW The incarceration-related portion of the Veteran's overpayment, arising from the suspension of his VA pension from October [REDACTED], 2011, to January [REDACTED], 2013, was properly created. 38 U.S.C. § 5313; 38 C.F.R. § 3.666. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from April 1971 to February 1976. These matters come before the Board on his appeal from a February 2013 notification letter issued by a VA Regional Office (RO), a February 2013 demand letter issued by the Debt Management Center (DMC), and a June 2013 decision issued by the Committee on Waivers and Compromises (COWC). The Veteran's challenges relate to his VA overpayment debt, which consists of two portions. One portion arose from the Veteran's receipt of his VA pension after the 60th day of his incarceration that resulted from his conviction of murder. The other portion arose from: (a) his receipts of an upward adjustment to his VA pension based on C.M. as the Veteran's dependent minor child for VA purposes; and (b) the Veteran's denouncement of his paternity of C.M. In addition, the Veteran challenges the validity of the amount of his overpayment on the grounds that the Veteran was technically awarded an upward adjustment based on C.M. as his dependent minor child, but the Veteran was not in actual receipt of such an upward adjustment because a portion of his VA pension was paid to K.M., as the custodial parent of C.M. The Veteran, therefore, believes that the overpayment based on C.M. should have been charged to K.M., not to him. At the onset, the Board notes that the Board's September 2018 decision issued by a Veterans Law Judge (VLJ) other than the undersigned provided the RO with directives as to the actions that the RO had to take as to the Veteran's Board hearing. Citing 38 C.F.R. § 20.700, the VLJ directed the RO to determine whether the Veteran could testify at his Board hearing either from the correctional facility or "at the RO." The latter meant that the Veteran would testify before a VLJ while being physically present at the RO. If the RO determined that such actions were not feasible, the VLJ directed the RO to allow the Veteran an opportunity to submit his testimony via an audiotape. If the RO determined that such an action was also unfeasible, the VLJ directed the RO to allow the Veteran's representative an opportunity to file an Appellant's Brief. The record is not in dispute that the RO did not perform the above-detailed actions, short of making inquiries with the correctional facility where the Veteran was confined as to the availability of the equipment to conduct a videoconference Board hearing while the Veteran would be situated at his correctional facility. Based on the RO's failure to comply with the remainder of the VLJ's directives, the Veteran's representative, a Veterans Service Organization (VSO) co located with the Board, filed a June 2021 Appellant's Brief seeking a remand of these matters under Stegall v. West, 11 Vet. App. 268 (1998). While the Board finds that a partial remand is warranted here, a Stegall remand appears unwarranted. To start, 38 C.F.R. § 20.700 does not provide for a right to submit an audiotaped testimony. An oral testimony could only be provided during: (a) an in-person Board hearing following an oath administered by a presiding Veterans Law Judge (VLJ); or (b) a videoconference Board hearing after an oath administered by a VLJ. Accord Scott v. Shinseki, No. 13 1863, 2014 U.S. App. Vet. Claims LEXIS 19, at *3-4 (Feb. 7, 2014) (a telephonic Board hearing cannot be administered "due to (1) privacy concerns; (2) an inability to fully assess the credibility of witnesses remotely without the assistance of visual technology; and (3) the absence of Board policies and procedures in place for conducting such hearings"). The Board, therefore, declines to hypothesize that a testimony provided via an audiotape, i.e., a testimony implicating the Scott concerns in addition to the lack of-an-oath concern, qualifies as a valid Board hearing. Next, the Veteran's representative's right to file an Appellant's Brief is assured without any action on the part of the RO. As a co-located VSO, the representative is expected, per the Board's agreement with co-located VSOs, to file the Veteran's Appellant's Brief prior to each of the Board's post-remand adjudications. Further, the VLJ's September 2018 directive to determine the feasibility of bringing the Veteran to the RO is futile (even if the Board were to factor out that the RO is not equipped to provide a proper level of security, since the Veteran is an inmate serving a lengthy prison term based on his murder conviction and, prior to that, served a prison term for a sexual assault). This is so because an inmate could be produced at a facility other than his/her place of confinement for the purposes of providing a testimony only based on: (a) a writ of habeas corpus ad prosequendum (used in criminal matters and civil matters collateral to criminal convictions); or (b) a writ of habeas corpus ad testificandum (used if an inmate is expected to testify as a witness or plaintiff in his/her civil proceeding other than an action collateral to his/her conviction); or (c) a bench warrant (which causes a de jure arrest of an inmate for the purposes of the arresting officers bringing him/her to the court to testify.) Since these orders result in production of the inmate at the court that issued the order, and no court can "lend" or "send" the Veteran to the RO, this portion of the September 2018 directive was futile. Further, while the RO could have taken actions as to the Veteran's Board hearing during the thirteen months after the issuance of the September 2018 decision, all functions related to arranging Board hearings for incarcerated claimants have been removed from ROs and vested in the Board effective October 2019. See Board Operations Handbook § 10.3.1. Therefore, the September 2018 directives related to the RO's arrangement of the Veteran's Board hearing are vacated, and once the Veteran's waiver claim is properly developed the Board itself will take actions consistent with § 10.3.1 to arrange his Board hearing with regard to the Veteran's waiver claim. As to the remainder of the Veteran's claims addressing the propriety of the creation of his overpayment (or portions thereof) and the validity of the amount of his overpayment (or portions thereof), the Veteran is not entitled to a Board hearing, and these challenges should be adjudicated based on the record accrued after the record is properly developed. 38 C.F.R. § 1.911(c)(2). Challenges to a debt arising from a VA overpayment could, but not must, encompass three different types of claims, i.e., a challenge to the propriety of the creation of the overpayment, a challenge to the validity of the combined overpayment amount, and a claim for a waiver of the resulting debt. Johnson v. Wilkie, No. 19-5789, 2020 U.S. App. Vet. Claims LEXIS 1205, at *5 (Vet. App. June 25, 2020). Further, if an overpayment consists of distinct portions, each portion could give rise to its own set of three claims, see Shephard v. Shinseki, 26 Vet. App. 159 (2013), i.e., each portion could, but not must, give rise to challenges to the propriety of the creation of this portion of the overpayment, the validity of the amount of this portion of the overpayment, and the denial of a waiver as to this portion of the overpayment. Since, here, there are two portions of the Veteran's overpayment, the Veteran could raise up to six claims. The Board determined that the Veteran raised five claims consisting of two challenges to the propriety of the creation of both portions of his overpayment, two challenges to the validity of the amounts of these portions of his overpayment (and subclaims incorporated into these challenges), and one waiver claim (incorporating various subclaims). In addition, the Veteran raised two lines of challenges falling outside the Board's (and/or the RO's) jurisdiction: since the Board (and/or the RO) is a quasi-judicial tribunal of limited Federal jurisdiction related to VA laws only. Specifically, the Veteran's VA Form 9 challenged the suspension of his VA pension during the Veteran's incarceration, but this claim raised a de facto challenge to his conditions of confinement: because the Veteran asserted that, "[d]uring [his] incarceration, much of the food [was] not worth eating, [hence,] the Veteran [had to] supplement his diet . . . [by] buy[ing] food [in the prison's commissary. He also ordered] clothing [in addition to those provided by the correctional facility] and pa[id] fee[s] to see physician[s]." Further, the June 2013 COWC decision shows that the Veteran alleged that his overpayment was improperly created because: (a) the Veteran believed that he had been "wrongfully convicted"; and (b) the Veteran had "reported [his] conviction to VA in 2011." These three challenges present three different types of claims. Two of them, i.e., the Veteran's allegation of being wrongfully convicted and his allegations based on the Veteran's conditions of confinement, fall outside the Board's jurisdiction. Therefore, the Board cannot adjudicate these claims and is without a basis to direct the RO to conduct an initial adjudication: since the RO same as the Board has no jurisdiction to adjudicate these claims. To clarify, under VA laws, any VA pensioner incarcerated for a period in excess of 60 days is no longer entitled to disbursement of his/her VA pension from the 61st day of incarceration until the date following the date of his/her release from confinement. 38 U.S.C. § 5313; 38 C.F.R. § 3.666. This is so because a VA pension is paid to ensure that the pensioner has access to basic life necessities (food, shelter, clothes, and medical care). If a pensioner is incarcerated, his/her correctional facility is constitutionally required to provide the pensioner with these basic life necessities. See, e.g., Farmer v. Brennan, 511 U.S. 825 (1994); Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97 (1976). Correspondingly, the Veteran does not become entitled to a VA pension if the meals served at the Veteran's correctional facility are of poor quality or so deprived of nutritional value that they put his health or life in danger, of if the Veteran is denied prison-provided clothes, or if he is denied medical care on the grounds that he cannot afford to pay a small fee that correctional facilities usually charge for a medical visit, and the Veteran's medically-diagnosed physical and/or mental conditions are such that he cannot earn any amount of compensation (that would be deposited by his correctional facility to the Veteran's inmate trust account) by performing work assigned to inmates by prison officials. Rather, the Veteran's remedy is to file a 42 U.S.C. § 1983 action against his prison officials seeking injunctive relief or monetary damages for violations of his civil rights. However, such an action could only be filed with a state court or a Federal district court with geographic jurisdiction over the warden of his correctional facility. In contrast, the Board, being a quasi-judicial agency of jurisdiction limited to VA laws, is without 42 U.S.C. § 1331 federal-question jurisdiction, which underlies the § 1983 action-for-damages jurisdiction required to entertain the Veteran's civil rights challenges. Therefore, the Veteran's § 1983 civil rights challenges cannot be adjudicated by either the Board or the RO since they fall outside VA laws. By the same token, the Veteran's challenges based on his assertion that he was wrongfully convicted fall outside the Board's jurisdiction. The logic underlying the Veteran's position appears to be as follows: (a) had the Veteran not been convicted, he would not have been incarcerated; (b) had he not been incarcerated, he would not be living in prison; (c) had he not been living in prison, he would be entitled to receipt of his VA pension; and (d) since he would have been entitled to receipt of his VA pension outside the prison, he should be entitled to receipt of VA pension while in confinement, because the Veteran believes that he was wrongly convicted. The Veteran's position is, however, flawed both logically and legally. On the logical side, the Veteran fails to observe that, had he not been incarcerated, he would not be entitled to the shelter, food, clothes, and medical care provided to him by his correctional facility. Therefore, the functions performed by his correctional facility replace the functions that the Veteran would have been performing for himself, utilizing his VA pension for the purchases of basic life necessities, had he not been incarcerated. Farmer, 511 U.S. at 853; Rhodes v. Chapman, 452 U.S. 337 (1981) (prison officials are required to provide inmates with at least the minimal civilized measure of basic life's necessities). Further, the Veteran's assertion that he was wrongfully convicted is legally barred from being entertained by the Board: this assertion could only be adjudicated by the state court that convicted the Veteran or the Federal district court with a geographic jurisdiction over the warden of the Veteran's place of confinement. The prohibition ensues from the combined effect of the doctrine of prematurity and the Board's lack of 28 U.S.C. § 2254 habeas jurisdiction. The doctrine of prematurity is rooted in the U.S. Supreme Court's decisions rendered in Preiser v. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey, 512 U.S. 477 (1994). Under Preiser, if a prisoner raises challenges that, at their core, implicate the fact or duration of the prisoner's confinement, his/her "sole Federal remedy" is a petition for a writ of habeas corpus, and (s)he cannot bring his/her claim to that effect in any other action. Preiser, 411 U.S. at 500. Since the Veteran is a convicted state prisoner, i.e., serving a sentence imposed by a state court, he can seek such a Federal remedy only under 28 U.S.C. § 2254 by commencing an action in a Federal district court having geographic jurisdiction over the warden of the Veteran's correctional facility. Under Heck, the habeas bar outlined in Preiser extends to those cases where a prisoner seeks a remedy other than an immediate or speedier release from confinement, e.g., (s)he seeks a financial benefit, but the prisoner's claim is based on the prisoner's assertion that his/her conviction or sentence was wrongful. In such a scenario, the prisoner is not entitled to a financial benefit until and unless his/her conviction or sentence is invalidated by a Federal writ of habeas corpus or by a state court's decision (granting his/her challenges to the prisoner's conviction or sentence on post-conviction relief or on direct appeal). Heck, 512 U.S. at 487. In other words, until such an invalidation takes place, any adjudicatory action awarding a financial benefit is barred as premature because such an adjudicatory action would implicitly find that the prisoner's conviction and/or sentence was wrongful by granting him/her the requested financial benefit. Here, the Veteran seeks an adjudicatory action expressly prohibited by Heck. Therefore, the Board cannot adjudicate this challenge and cannot direct the RO to initially adjudicate this challenge since it falls outside of VA laws. Simply put, the Veteran's habeas and civil rights challenges can be adjudicated by the Board or the RO no more than, e.g., a patent claim, that is, had the Veteran elected to raise it. With this, the Board turns to the VA-law-based challenges that the Veteran raised. The Board begins with the Veteran's claim that his overpayment was improperly created because he notified VA of his conviction in 2011, but VA failed to promptly act on his notice. The Board construes this assertion as the Veteran's allegation of a sole administrative error on the part of VA. The sole-administrative-error inquiry is two-pronged. On the one hand, to establish that the overpayment was created as a result of such an error, the debtor is required to show that his/her actions or failure to act did not cause or contribute to the debtor's receipt of the benefit at issue. Given that the Veteran asserts that he properly acted by notifying VA of his conviction in 2011, i.e., either before or shortly after October [REDACTED], 2011, when he became ineligible to receive his VA pension, the Board presumes, arguendo and without making a factual finding to that effect, that the Veteran met the first prong of the sole-administrative-error inquiry. Therefore, the Board turns to the second prong. This prong requires a showing that the Veteran neither knew nor should have known that the benefit at issue was awarded in error. 38 U.S.C. § 5112(b)(9), (10); 38 C.F.R. § 3.500(b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997). Here, the record demonstrates that the Veteran knew that he was not entitled receipt of his VA pension while he was held in confinement in excess of 60 days based on his conviction of murder. This is so because the Veteran's VA pension had been previously suspended in the identical fashion during his prior incarceration for a period in excess of 60 days as a result of his prior conviction for a sexual assault. Since, to establish a sole administrative error on the part of VA, the Veteran is required to meet both prongs of the sole-administrative-error inquiry, and he has failed to meet the second prong, the incarceration-related portion of his overpayment debt was properly created. Accordingly, the Veteran's challenge to the creation of the incarceration-related portion of his combined overpayment is denied. REASONS FOR REMAND The Board now turns to the remainder of the Veteran's claims implicating VA laws. The Veteran's VA pension was initially upwardly adjusted based on C.M. as his dependent minor child. After years of receiving such an upward adjustment, the Veteran: (a) denounced his paternity of C.M.; (b) stated that he never saw C.M. in his life; and (c) pointed out that he never had had a DNA test conducted to determine his paternity of C.M. Based on the Veteran's statements to that effect, the RO retroactively removed C.M. from the Veteran's VA pension and created the second portion of the Veteran's overpayment based on said retroactive removal. (The first portion was created based on the Veteran's receipts of his VA pension after the 60th day of his incarceration due to his murder conviction). Upon the RO's creation of the second portion of his incarceration, the Veteran challenged the propriety of the creation of this portion and informed the RO that he could not completely rule out that C.M. was his biological child, since K.M., i.e., C.M.'s custodial parent, was the Veteran's former spouse and the mother of his two other children. While the record is not in dispute that the Veteran was charged with a portion of his overpayment based on the retroactive removal of C.M. from his VA pension, the Board's review of the electronic record did not reveal an RO's notice proposing to create such a portion of the overpayment and affording the Veteran an opportunity to reply, or an RO's notice of final action (adjudicating that C.M. did not, in fact, qualify as his dependent minor child), or a demand letter stating the amount of the portion of the overpayment accrued due to the Veteran's receipt of the upward adjustment based on C.M. as his dependent minor child, or a Statement of the Case (SOC) addressing the Veteran's challenges to the creation of this portion of his overpayment. The only two documents that the Board was able to locate were the June 2013 COWC decision denying the Veteran's waiver claim and referring to, inter alia, this portion of his overpayment, and the Veteran's NODs challenging, inter alia, the creation of the portion of his overpayment based on the RO's retroactive removal of C.M. from his VA pension. In its June 2013 decision, COWC noted that the incarceration-related portion of the Veteran's overpayment debt was in the amount of $16,059.40, while the combined debt amount was in the amount of $18,348.57. Based on these COWC's statements, the VLJ who issued the September 2018 Board decision concluded that the portion of the Veteran's overpayment related to his receipts of the upward adjustment based on C.M. as his dependent minor child was in the amount of $2,289.17, i.e., $18,348.57 minus $16,059.40. The RO's March 2019 audit report, produced pursuant to the VLJ's September 2018 directives, confirmed the correctness of the VLJ's conclusion. However, neither the June 2013 COWC decision nor the RO's March 2019 audit report provided any information as to the propriety of the creation of the portion of the Veteran's debt based on C.M.; rather, the information provided addressed solely the amount of this portion of the overpayment. Therefore, the record raises substantial due process concerns as to the propriety of the creation of this portion of the Veteran's overpayment, and these due process concerns mirror the Veteran's challenge reiterated in his NODs. Hence, this due process claim is remanded. Moreover, while the RO's March 2019 audit report confirmed that the amount of the Veteran's upward adjustment received based on C.M. as his dependent minor child was $2,289.17, the report did not clarify how that amount was calculated. Instead, the report stated that the amount of the Veteran's overpayment based on C.M. varied from $0 to $3 to $4 to $4.60 to $6 to $9 to $12 to $16 to $18 to $19 to $23 to $27 to $36 per month and, upon multiplying these amounts by the number of months during which each of these overpayments took place, yielded $2,289.17. Since the amount of the Veteran's monthly upward adjustment based on C.M. as the Veteran's dependent minor child had to be markedly higher than the figures provided in the March 2019 audit report (i.e., markedly higher than $0, $3, $4, $4.60, $6, $9, $12, $16, $18, $19, $23, $27 or $36 per month), the Board presumes, without making a factual finding, that the amounts reflected the monthly differences between the amounts VA paid to the Veteran as his upward adjustment and the amounts of apportionment VA paid to K.M. as the custodial parent of C.M. However, since the monthly amounts of the Veteran's upward adjustment and the monthly amounts of K.M.'s apportionment were not clarified in the audit report, the Board is not in a position to verify the RO's calculations. Thus, the Veteran's challenge to the amount of the portion of his overpayment arising from the upward adjustment paid to him for C.M. as his minor child, to include his claim for a reduction of the amount of this portion of his overpayment by the amount of apportionment paid to K.M. as the custodial parent of C.M., is also remanded. Next, the Board turns to the Veteran's challenge to the amount of the portion of his overpayment based on the Veteran's incarceration in excess of 60 days. The RO's March 2019 audit report verified that the total amount of this portion of the Veteran's overpayment was $16,059.40, but the report did not clarify whether this amount was comprised of VA payments that included or excluded the upward adjustment paid to the Veteran based on C.M. Given that the Veteran would be double-charged if he is first charged with an overpayment based on the upward adjustment that VA paid to the Veteran based on C.M. as his dependent minor child, and then charged with an overpayment of his VA pension consisting of payments that VA made during his incarceration with inclusion of the upward adjustment based on C.M. as the Veteran's dependent minor child, the Veteran's challenge to the amount of the portion of his combined overpayment based on his incarceration is also remanded. Finally, because the Board cannot adjudicate the Veteran's claim for a waiver of his combined overpayment until the Veteran's challenges to the propriety of the creation of any portion of his overpayment and the validity of the amount of any portion of his overpayment are adjudicated, see 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 the veteran's challenge to the lawfulness of the debt asserted against him or her"), the Veteran's waiver claim is also remanded. The matters are REMANDED for the following action: 1. Determine whether C.M. qualified as the Veteran's dependent minor child for VA purposes, given that, after denouncing his paternity of C.M., the Veteran stated that he could not rule out that C.M. was his biological child, given that K.M., i.e., C.M.'s mother, was the Veteran's former spouse and the mother of his two other children. 2. In the event it is determined that the C.M. did not qualify as the Veteran's minor child for VA purposes, determine whether he was properly charged with the portion of the Veteran's overpayment related to retroactive removal of C.M. from his VA pension. If the Veteran was properly charged with this portion of his overpayment (i.e., issued a proposal notice, provided an opportunity to reply, issued a final action notice, and provided with a demand letter stating the amount of the resulting portion of his overpayment), associate these documents with the Veteran's claims file. In the event the Veteran was not properly charged with this portion of his overpayment, issue the Veteran an Appeal Notification Letter informing him of this procedural deficiency and detailing the actions that the RO would take to cure the procedural deficiency. 3. Simultaneously with the foregoing, conduct a paid and due audit of the Veteran's account to determine, separately: (a) the amount of the upward adjustment the Veteran received based on C.M. as his dependent minor child (the audit report should state only the months and years when the Veteran was paid the upward adjustment based on C.M. as his dependent minor child, and the amount paid during each month); (b) the amount of the apportionment paid to K.M. as the custodial parent of C.M (the audit report should state only the months and years when the apportionment based on C.M. was paid to K.M. and the amount paid during each month, in light of the fact that K.M. was receiving an apportionment for three of the Veteran's children, only one of which was C.M.); and (c) the amount of the portion of the Veteran's overpayment resulting from his receipt of a VA pension during his incarceration from October [REDACTED], 2011, to January [REDACTED], 2013 (the audit report should state only the amounts that were paid each month and clarify if these amounts were upwardly adjusted based on C.M. as the Veteran's minor child). 4. Include in the Appeal Notification Letter generated pursuant to Step 2 a summary of the audit report that would be generated pursuant to Step 3. The summary should be stated in terms amenable to the understanding of a layperson. 5. Upon completing the foregoing and all other developments deemed necessary, forward the Appeal Notification Letter and the Veteran's claim for a waiver of his combined overpayment debt to COWC for a re adjudication upon COWC's individual reflections on each portion of the Veteran's combined overpayment debt, i.e., the portion based on the retroactive removal of C.M. as the Veteran's minor child from his VA pension, and the portion related to the Veteran's incarceration based on his murder conviction. 6. Upon completing the foregoing and any other developments deemed necessary, adjudicate: (a) the Veteran's challenge to the propriety of the creation of the portion of his overpayment based the retroactive removal of C.M. as his dependent minor child from his VA pension; (b) the Veteran's challenge to the validity of the amount of this portion of his overpayment (to include the Veteran's claim that the upward adjustment was theoretically paid to him based on C.M. as his minor child but, in actuality, was apportioned to K.M. in her capacity as C.M.'s custodial parent); (c) the Veteran's challenge to the amount of the portion of his overpayment created based on the Veteran's incarceration ensuing from his conviction of murder (upon ensuring that the overpayment based on the upward adjustment ensuing from the retroactive removal of C.M. as his dependent minor child from his VA pension was not charged to the Veteran twice, i.e., first as an overpayment based on C.M. and then as a part of the overpayment based on the Veteran's incarceration in the event the Veteran's VA pension payments during his incarceration were upwardly adjusted based on C.M.); and (d) his waiver claim as to the Veteran's combined overpayment debt. 7. If any of the Veteran's challenges remains denied, a Supplemental SOC should be furnished to the Veteran and his representative, and the Veteran should be afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. (Continued on the next page) See Kutscherousky v. West, 12 Vet. App. 369 (1999). Cynthia M. Bruce 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.