Citation Nr: 21012727 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-24 652 DATE: March 5, 2021 REMANDED Entitlement to a waiver of recovery of an overpayment of Department of Veterans Affairs (VA) pension benefits is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Navy from August 1972 to July 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 Department of Veterans Affairs Pension Management Center correspondence retroactively reducing the Veteran’s VA pension benefits and a November 2013 decision by the Committee on Waivers and Compromises (COWC) that denied a waiver of recovery of the overpayment ensuing from the retroactive reduction of the Veteran’s VA pension benefits. Pursuant to a recent Board Remand Decision, dated June 2020, this matter was remanded for additional development. To date, the record does not reflect substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (conferring upon an appellant the right to substantial compliance with the Board’s order)). Specifically, the Board’s July 2020 remand directives instructed the AOJ, in relevant part, to conduct additional development and issue a Supplemental Statement of the Case (SSOC) which considered any new evidence submitted in compliance with the directed development. The Board observes that an SSOC was issued in August 2020; however, it failed to address the new evidence submitted in connection with the July 2020 remand directives. Therefore, this matter must be remanded back to the AOJ. 1. Entitlement to a waiver of recovery of an overpayment of Department of Veterans Affairs (VA) pension benefits is remanded. Although the further delay entailed by remand is regrettable, current adjudication of the Veteran’s claims would be premature. Undertaking additional development prior to a Board decision is the only way to ensure compliance with the duty to assist, as required. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2018). The Veteran contends that he is entitled to waiver of an overpayment of VA pension benefits. He also disputes whether the indebtedness identified was properly created. As a preliminary matter, the Board observes that this matter was recently remanded pursuant to a July 2020 Board Decision. Therein, the Board intimated the Veteran raised the question of whether the amount of indebtedness was properly created (i.e. 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). On remand, the AOJ was requested to conduct additional development, to include remand directives indicating that the AOJ should contact the Veteran to verify his mailing address and phone number; request a financial statement/statement of hardship; obtain a written statement regarding whether the Veteran desires a Board hearing; conduct an audit to identify the date VA benefits were terminated and basis for the date identified; adjudicate whether the overpayment was properly created; determine the Veteran’s competence for purposes of VA financial transactions and if necessary, appoint a fiduciary; and if the challenge to creation of the indebtedness remains denied, issue an SSOC. Review of the record indicates that in August 2020, a VA Form 21-0820, Report of General Information was associated with the claims file. Therein, a VA representative indicated that the Veteran was contacted by phone. During the call, the Veteran was advised regarding the Board’s request for additional information to include a financial statement/statement of hardship and written clarification regarding his desire for a Board hearing. He acknowledged his obligation to submit financial information and indicated that he no longer wished to attend a Board hearing. The Veteran also reported that he is divorced and currently resides with his girlfriend. He states that works odd jobs only. The Veteran also expressed an intention to submit additional claims for service connection. In August 2020, the AOJ issued a SSOC regarding whether indebtedness caused by terminating Veteran’s pension benefits was properly created. No other inquires or questions were considered. An audit report was associated with the claims file in the same month. In September 2020, the Veteran submitted a VA Form 5655 Financial Status Report. Therein, he reported receipt of SSA (social security administration) benefits in the amount of $717.00 per month, VA benefits of $293.00 per month, and a net monthly income of $1,010.00. No monthly bills or financial obligations were specifically noted. The Veteran reported cash on hand as $500.00 and listed an asset as a 2011 Dodge Ram-EV valued at $10,000.00. In July 2020, VA correspondence indicated that a favorable finding of competence had not been rendered. Thereafter, a VA Form 21-592 Request for Appointment of Fiduciary Custodian or Guardian was associated with the record. To date, the AOJ has not issued a SSOC which specifically considered all the evidence noted above. Therefore, an additional remand is required. The matters are REMANDED for the following action: 1. Issue an SSOC. The SSOC must contain notice of all relevant actions taken on the claim, to include the applicable laws and regulations considered pertinent to the issue on appeal, as well as a summary of the evidence of record. After the Appellant has an opportunity to respond, the case should be returned to the Board if and only if the Appellant files a timely substantive appeal. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.