Citation Nr: A21020355 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 200518-85054 DATE: December 21, 2021 REMANDED Whether an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $744.04 was properly created is remanded. REASONS FOR REMAND The Veteran had active service from January 1975 to January 1979. The Department of Veterans Affairs (VA) Debt Management Center (DMC) notification letter on appeal was issued in March 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Whether an overpayment of VA compensation benefits in the amount of $744.04 was properly created The Veteran states he does not understand the source of the overpayment, and he contends he spoke to someone at VA who was unable to tell him why the debt was created. See May 2020 Veteran's statement; May 2020 VA Form 10182 Notice of Disagreement. The Board notes that since the Veteran opted into the Appeals Modernization Act (AMA) review system, ordinarily the Board can only consider the record as of the DMC letter on appeal. See 38 C.F.R. §§ 20.202 (b)(1), (c)(1), 20.301. However, the Board must remand cases where there is a pre-decisional duty to assist error or correction of any error by the AOJ, other than a duty to assist error, in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the Appellant's claim. See 38 C.F.R. § 20.802(a). Additionally, the standard of "no reasonable possibility" is not fulfilled under the "mere belief that the likelihood" of substantiating the claim is low. See Jones v. Wilkie, 918 F.3d 922, 926 (2019) (interpreting similar language from 38 U.S.C. § 5103A). The remand must specify the action to be taken by the AOJ. In this case, the Veteran does not believe the overpayment is valid because he does not know how it was created. The Board notes that it appears to be related to a March 2020 notification letter stating the apportioned share of the Veteran's benefits for the Veteran's former spouse and son had changed. However, it is unclear how the change resulted in the amount of the overpayment in question. Because a calculation of the debt has not been provided, VAOPGCPREC 6-98 (July 24, 1998) essentially indicates that part or all of this debt may not need to be waived because it is invalid, thereby lessening the burden on the Veteran to satisfy the Veteran's claim. The Board, thus, considers it a correctible error by the AOJ in satisfying their regulatory and statutory duties under 38 U.S.C. § 5302(b) and 38 C.F.R. § 1.965 and that correction raises a reasonable possibility of aiding in substantiating the Veteran's claim. Accordingly, remand under the AMA for these and similar circumstances remains appropriate for this specific action. On remand, an audit should be conducted to determine how the overpayment was created. The matter is REMANDED for the following action: 1. Prepare a paid and due audit of the Veteran's VA compensation account from November 2019 to the present, to include the apportioned share of the Veteran's benefits for the Veteran's former spouse and son. Notify the Veteran and take any additional action deemed necessary thereafter. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dean, 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.