Citation Nr: A21020595 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 201102-118205 DATE: December 28, 2021 REMANDED The matter of whether a waiver of the $13,475.98 debt related to the Veteran's incarceration from July 21, 2003 to October 18, 2005 is warranted, to include whether the debt was properly created and properly calculated, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to May 1970. In February 2004, the Department of Veterans Affairs (VA) received information indicating the Veteran was incarcerated. The information received indicated the Veteran had been arrested on July 21, 2003. The VA Regional Office (RO) then wrote to the Norfolk County Jail in February 2004 to request information as to the details of the Veteran's incarceration. The RO also wrote to the Veteran in February 2004 and proposed to reduce his VA compensation to 10 percent effective the 61st day of his incarceration. The Veteran was given 60 days to provide information to indicate the reduction should not be made. The Veteran did not respond and on April 2, 2004, the RO sent him a letter indicating that his benefits were reduced to 10 percent effective September 20, 2003, the 61st day of his incarceration. This letter informed him that if he disagreed with the decision, he had one year to respond with his disagreement. Subsequent communication from the Virginia Department of Corrections shows the Veteran was discharged on October 18, 2005. In November 2005, the Veteran was notified by the RO that his benefits were restored effective October 18, 2005. None of these letters suggest the presence of an overpayment debt. The Veteran subsequently incurred an overpayment debt related to a separate fugitive felon matter, an appeal which was separately adjudicated. The fugitive felon debt amounted to $177,275.87. In February 2010, the VA Debt Management Center (DMC) notified the Veteran of a $182,572.42 debt. A follow up letter the same month clarified that this was a $177,275.87 new debt making a $182,572.42 balance of the Veteran's VA debt. In April 2010, the Veteran submitted a statement indicating his lack of understanding of how the $182,572.42 debt was created. Thus, he was seeking information as to how both the fugitive felon and the incarceration debts were created. In July 2010, the Veteran submitted a Financial Status Report (FSR) and requested a waiver. In June 2013, VA sent the Veteran a letter explaining that the original overpayment was $13,475.95 and indicated he was notified by letter on April 17, 2004. There is no April 17, 2004 letter in the Veteran's claims file. Moreover, the Veteran returned the letter to VA with a handwritten note indicating, "The numbers are wrong!" A September 2018 deferred rating decision shows the RO recognized the July 2010 waiver request had not been adjudicated. In February 2020, the Committee on Waivers and Compromises (COWC) issued a decision. The $13,475.98 debt related to the Veteran's period of incarceration was not waived. The COWC indicated that the Veteran was notified of this debt by the DMC on April 17, 2004 and that the FSR was not received until July 2010. Thus, this waiver request was denied based upon the waiver request being untimely. Again, there is no evidence in the claims file that the Veteran was notified of the incarceration debt by DMC, to include no evidence of notification of the amount of the debt or the time limits for filing a waiver request. The April 17, 2004 letter is not in the file. The Board has exhausted the internal administrative efforts available to obtain these records, but no response was received. Moreover, there is no evidence in the file that the RO responded to the Veteran's requests for explanation of the debt at issue. A May 2021 paid and due audit was sent to him related to payments between December 2001 and April 2021; however, there was no explanation of the incarceration debt. In December 2021, the Veteran was sent a letter explaining that the audit of benefits for the years 2001 to 2020 was sent in response to his request, and further explained that the Veteran has been service connected at the 100 percent rate since November 1, 2001, and that his benefits were reduced to 10 percent effective September 20, 2003 and resumed at the 100 percent rate effective October 18, 2005. Given the Veteran's indication that the debt was not properly calculated, the Board finds the RO's explanation of the debt to be insufficient. At no time has the Veteran been provided an explanation of the $13,475.98 debt at issue. Given his indication of a miscalculation prior to the decision on appeal, the Board finds this to be a pre-decisional error on the part of the RO. 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 COWC 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 RO, 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 Veteran'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. 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 RO 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. Similarly, with regard to the waiver matter, the absence of notice of the amount of the debt with the rights and time limits for appeal, would constitute a due process deficiency that could impact the decision on appeal. Accordingly, remand under the AMA for these and similar circumstances remains appropriate for this specific action. While the Board sincerely regrets the additional delay in this longstanding appeal, the matter is REMANDED for the following action: 1. Complete the necessary evidentiary development related to the calculation of the Veteran's incarceration debt, and adjudicate the matter of whether the debt was properly created, to include the calculation of the $13,475.98 debt. 2. Associate the April 17, 2004 DMC letter notifying the Veteran of the $13,475.98 incarceration debt and his rights, including the time limits, for appeal. If this letter cannot be found, a formal finding should be made as to whether the Veteran was actually notified of his appeal rights. If not, corrective action should be taken. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.