Citation Nr: 21010796
Decision Date: 02/25/21	Archive Date: 02/25/21

DOCKET NO. 17-45 634
DATE: February 25, 2021

ORDER

A waiver of recovery of an overpayment in the amount of $6,981.16 for education benefits under Chapter 33, Title 38, United States Code, known as the Post-9/11 GI Bill, is dismissed.

 

FINDING OF FACT

A substantive appeal was not received within 60 days of the statement of the case (SOC) denying a waiver of recovery of an overpayment in the amount of $6,981.16 for education benefits under the Post 9/11 GI Bill. 

CONCLUSION OF LAW

As the Veteran did not substantiate his appeal for a waiver of recovery of an overpayment in the amount of $6,981.16 for education benefits under the Post 9/11 GI Bill, the Board has no jurisdiction to adjudicate the merits of this appeal.  38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.104.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1994 to October 2014.

The issue is from a March 2017 decision by VA’s Debt Management Center (DMC).

A waiver of recovery of an overpayment in the amount of $6,981.16 for education benefits under the Post 9/11 GI Bill. 

The case was most recently before the Board in July 2020.  At that time, the Board denied the appeal as to the propriety of the creation of a debt stemming from an overpayment of education benefits under the Post 9/11 GI Bill.  In addition, the Board remanded the issue of a waiver of recovery for such debt for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  See 38 C.F.R. § 20.904(c).

Pursuant to the Board’s remand, an SOC was issued in September 2020.  The letter was mailed to the Veteran’s current mailing address of record.  This is supported by recent correspondence received and sent either by VA or the Veteran.  See January 5, 2021 Application to Add or Remove Dependents (VA Form 21-686c) and VA’s Dependents’ Determination letter; see also January 7, 2021 Report of General Information (VA Form 21-0820).    

Current 38 C.F.R. § 19.52(b)(1) provides that a substantive appeal must be filed within 60 days from the date the agency of original jurisdiction mails the SOC to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed (date of VA’s initial decision), whichever period ends later.  

Here, no substantive appeal has been received following the SOC for this issues.  As such, the issue should not have been sent to the Board as an issue on appeal.  In the Board’s July 2020 remand directives, it was stated to return the claim to the Board “if a timely substantive appeal is submitted.”  However, no substantive appeal was received.  Failure to submit substantive appeal, including a VA Form 9, within the allotted time following the issuance of an SOC deprived the Board of jurisdiction to consider the merits of an appeal.  Because the Board lacks jurisdiction to consider this issue, dismissal is appropriate.  The Board is authorized to dismiss any appeal that fails to allege an error of fact or law.   38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.104(c).  Accordingly, this matter is dismissed.

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	William Pagan, 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.