Citation Nr: A21019533 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 191030-53008 DATE: December 7, 2021 REMANDED Whether an overpayment of pension benefits in the amount of $71,240.00 was validly created is remanded. Entitlement to waiver of recover of an overpayment of pension benefits is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from November 1972 to April 1977. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. Under the new AMA framework, the Veteran appealed the August 2019 decision of the VA Debt Management Center (DMC) to the Board and requested direct review by a Veterans Law Judge. See Notice of Disagreement VA Form 10182. 1. Whether an overpayment of pension benefits in the amount of $71,240.00 was validly created is remanded. 2. Entitlement to waiver of recover of an overpayment of pension benefits is remanded. Under the AMA, the Board must remand to the AOJ to correct pre-decisional duty to assist errors. VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 189-190 (Jan.18, 2019) (to be codified at 38 C.F.R. § 20.802 (a)). Specifically, the electronic claims file is incomplete. First, in an August 2019 waiver decision, the DMC indicated that it received the Veteran's request for waiver of the debt on July 19, 2019, which the DMC ultimately denied as untimely. See Decision on Waiver of Indebtedness. However, the Veteran's waiver request package received on July 19, 2019 is not of record. Thus, it is not clear what evidence was considered by the DMC in making this determination. Next, the August 2016 waiver decision also indicates that the Veteran was notified of his rights by letter dated October 10, 2014 which is of record. However, the October 10, 2014 DMC letter refers to a separate notification letter that was "recently sent" which explains the change in benefits. Critically, this separate letter which was sent prior to the DMC's October 2014 notification letter is not of record. Moreover, based on the current state of the record, it is not clear whether the current overpayment in the amount of $71,240.00 was validly created. Therefore, this separate letter referenced by the DMC's October 2014 letter which presumably explained how the overpayment was created, should have notified the Veteran of the benefit payments that were received in excess, as well as properly informed the Veteran of his right to request a waiver. As the Board reiterates, there is no indication from the current record that the Veteran had become aware of any waiver rights and the time limit for filing a waiver as such communication is not of record. Lastly, the Board notes that in remanding, the Veteran is afforded another opportunity to provide lay statements or additional documents explaining any extenuating circumstances regarding his delay in submitting a waiver, receipt of the notice of indebtedness, or any other circumstances beyond his control. To that end, the Board observes that in certain instances, the time for filing a waiver of the overpayment may be equitably tolled because of extenuating circumstances, such as mental or physical incapacity. Case law has indicated that, as a claims processing rule, rather than jurisdiction-conferring statute, the one year period specified in § 5110(f) is subject to equitable tolling in certain circumstances. See Bowles v. Russell, 551 U.S. 205, 210 (U.S. 2007) (noting the difference between claims-processing rules and jurisdictional rules); Barrett v. Shinseki, 22 Vet. App. 457, 460 (2009) (discussing Bowles and the distinction between claims- processing rules and jurisdictional statutes). In Irwin v. Department of Veterans Affairs, 111 S. Ct. 453, 458 (1990), the Supreme Court held that equitable tolling may be applied to toll a statute of limitations in certain circumstances. The Supreme Court held that there is a rebuttable presumption that all federal statutes of limitations contain an implied equitable tolling provision. Id at 457. Equitable tolling may be proper in a case where a Veteran filed an untimely appeal due to mental illness. In this instance, the Veteran must show that the failure to file was the direct result of a mental illness or physical incapacity that rendered him incapable of "rational thought or deliberate decision making," or "incapable of handling [his] own affairs or unable to function [in] society." Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004). Accordingly, a remand is necessary as to ensure that the file before the Board is complete and to afford the appellant the opportunity to provide documents that are not currently in the electronic claims file. The matters are REMANDED for the following action: 1. Take appropriate action to locate the missing contents of the claims file. Of particular interest to the Board are the following: the July 19, 2019 request for waiver of overpayment; the separate letter referenced in the DMC's October 10, 2014; and copies of letters or communication sent to the Veteran explaining his waiver rights and the time limit for filing a waiver. After completing the above, verify that the complete file has been obtained to the extent possible. 2. By written correspondence, contact the Veteran and request that he submit any the documents noted above if they are in his possession and any additional statements that are not reflected of record. The appellant may also wish to complete and submit a Financial Status Report or other appropriate form with updated financial information. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. An, 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.