Citation Nr: A21020361 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 200526-87824 DATE: December 21, 2021 REMANDED Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits, to include the question of whether the overpayment was properly created is remanded. REASONS FOR REMAND This appeal comes to the Board of Veterans' Appeals (Board) from August and December 2019 decisions of the Committee on Waivers and Compromises (Committee) of the Agency of Original Jurisdiction (AOJ). In May 2020, the Veteran timely appealed this decision to the Board, and elected Direct Review by Veteran Law Judge. See May 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). In this case, the Veteran challenged the validity of the debt and argues that there was sole VA error. The Veteran was convicted of a felony offense and was incarcerated. In December 2017, the AOJ notified the Veteran that his benefits were retroactively reduced on the 61st date of incarceration, on October 30, 3016. See 38 U.S.C. § 5313 (a); 38 C.F.R. § 3.665 (a). However, at the latest, in January 2017 and February 2017, the AOJ was notified of the Veteran's incarcerated status. The AOJ continued to pay the VA compensation benefits through his former fiduciary who then paid the money to his former wife and children. The Veteran was unaware of the financial specifics as he was not part of the payment process; additionally, he has been rated as incompetent, so his understanding of such matters appears diminished. The Court of Veterans Appeals (Court) has directed that appellate review by Board on the Veteran's waiver claim must be deferred pending formal adjudication of the Veteran's challenge to the validity of the debt must be undertaken by the AOJ. 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 a veteran's challenge to the lawfulness of the debt asserted against him or her"); VAOPGCPREC 6-98 (July 24, 1998) (holding that when a veteran challenges the validity of the debt and seeks waiver of the debt, the [AOJ] must first fully review the debt's validity and, if the office believes the debt to be valid, prepare a written decision fully justifying the validity of the debt before referring the waiver request to the Committee on Waivers and Compromises). A debtor may dispute the amount or existence of a debt, which is a right that may be exercised separately from a request for waiver or at the same time. 38 C.F.R. § 1.911 (c)(1). Resolution of the creation issue must precede consideration of the waiver issue. 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 Committee decision. 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, 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. The matters are REMANDED for the following action: Adjudicate the issue of whether the overpayment was properly created, to include the raised matter of sole administrative error. Sarone Solomon Acting 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.