Citation Nr: 21010924
Decision Date: 02/26/21	Archive Date: 02/26/21

DOCKET NO. 17-44 396
DATE: February 26, 2021

REMANDED

The issue of entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $14,247.28 due to concurrent receipt of active duty pay is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 2002 to June 2005 and from January 2010 to February 2011, with service in Southwest Asia and additional service in the Army National Guard.

In June 2019, the Board remanded the appeal to the RO for additional development, as the Board found the Veteran raised the issue of the proper creation of the debt, to include the matter of sole administrative error.  See Edwards v. Peake, 22 Vet. App. 57, 60-61 (2008) (pleadings from a pro se claimant are to be read sympathetically in cases involving waivers of overpayments).  Resolution of the creation issue must precede consideration of the waiver issue and must include consideration as to whether the Veteran was either legally entitled to the benefits in question or, if the Veteran was not legally entitled, whether VA was solely responsible for the Veteran being erroneously paid benefits.  See Schaper v. Derwinski, 1Vet. App. 430, 437 (1991).

Unfortunately, there has not been substantial compliance with the Board’s previous remand directives and another remand is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

In the September 2020 Supplemental Statement of the Case (SSOC), the RO again adjudicated the issue of entitlement to a waiver, but did not adjudicate the threshold issue of whether the debt was properly created, to include the issue of sole administrative error.  Further, a December 2020 email associated with the record indicates that an audit was requested by the RO in August 2020 in conjunction with the Board remand.  This audit has not been associated with the record.  As such, the development of the issue of the validity of the overpayment debt has not been completed, and a remand is necessary.

The matters are REMANDED for the following action:

Adjudicate the issue of whether the overpayment was properly created, to include the raised issue of sole administrative error. 

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. Bynum, 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.