Citation Nr: 21014042 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-32 244 DATE: March 11, 2021 REMANDED The issue of entitlement to waiver of recovery of an overpayment of Veterans Retraining Assistance Program (VRAP) benefits in the amount of $2,033.20, to include the matter of whether the debt was properly created, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to November 1976. This appeal to the Board of Veterans’ Appeals (Board) arose from a March 2014 decision by the Department of Veterans Affairs (VA) Debt Management Center (DMC), wherein the DMC’s Committee on Waivers and Compromises (COWC) denied waiver of recovery of an overpayment of VRAP benefits in the amount of $2,033.20. The Veteran timely disagreed with, and perfected an appeal as to, that determination. The procedural history of this case has been detailed in the prior actions in the appeal. Accordingly, the procedural history will only be repeated herein as necessary to explain the state of the issues currently before the Board. Most recently, in September 2020, the Board remanded the waiver claim, to include the matter of whether the debt was properly created, to ensure compliance with the terms of a June 2020 remand. In January 2021, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) in which it continued to deny the Veteran’s request for waiver of recovery of the overpayment of VRAP benefits. The matter was thereafter returned to the Board for further appellate consideration. Unfortunately, the Board finds that additional AOJ action is necessary, even though such will, regrettably, further delay an appellate decision in this matter. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA “a concomitant duty to ensure compliance with the terms of the remand.” Stegall v. West, 11 Vet. App. 268, 270 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, “the Board itself errs in failing to ensure compliance.” Id. Indeed, compliance by the RO is neither optional nor discretionary. A review of the Board’s September 2020 remand reveals that the Board directed that, in order to comply with the terms of a prior, June 2020, remand, the AOJ was to associate with the claims file all relevant documents related to the creation of the debt and the Veteran’s request for waiver of recovery of indebtedness, to specifically include all adjudicatory and jurisdictional documents and all letters notifying the Veteran that an overpayment had been created. The Board pointed out that that the record then currently before the Board was incomplete and devoid of the Veteran’s request for waiver of recovery of the overpayment of VRAP benefits, her notice of disagreement (NOD) disagreeing with the DMC’s denial of waiver request, and the statement of the case (SOC) addressing the issue of entitlement to a waiver of recovery of the debt resulting from the overpayment of VRAP benefits. It was also noted that the record did not contain a May 2014 notification letter informing the Veteran of the DMC’s denial of her waiver request, and contained no documents informing the Veteran regarding the creation of the overpayment, to include an explanation as to how the AOJ arrived at the debt amount. In its September 2020 remand action, the Board also noted that the matter on appeal was previously remanded for the AOJ to create a detailed yet straightforward accounting showing how the Veteran’s overpayment of VRAP benefits was calculated, but that an accounting had not been created. The Board again pointed out that an accounting was required in this case that there existed a discrepancy when comparing the amount VRAP benefits purportedly issued by VA (and returned to the Veteran upon withdrawal from her program of study at College of the Albemarle in Elizabeth City, North Carolina) with the debt calculated. Lastly, in its September 2020 remand action, the Board noted that after the AOJ issued the July 2020 SSOC wherein it continued to deny the Veteran’s waiver request, and before the matter was returned to the Board, the Veteran, in August 2020, submitted additional lay evidence, consisting of a statement outlining her reasons for believing a waiver should be granted in this case, to include reference to her income situation. The Board found that the Veteran’s statement was not duplicative of evidence already of record and that, therefore, in accordance with 38 C.F.R. § 19.37(a), it was required to again remand the matter for the AOJ to review the Veteran’s lay evidence and prepare an SSOC that specifically considered this evidence submitted prior to recertification of the appeal to the Board. Notably, a review of the record fails to show that the AOJ undertook any efforts to comply with the Board’s September 2020 remand instructions outlined above. The Board has extensively reviewed the record and finds that it is still devoid of the Veteran’s request for waiver of recovery of the overpayment of VRAP benefits, her NOD disagreeing with the DMC’s denial of waiver request, the SOC addressing the issue of entitlement to a waiver of recovery of the debt resulting from the overpayment of VRAP benefits, and the May 2014 notification letter informing the Veteran of the DMC’s denial of her waiver request, as well as any documents informing the Veteran regarding the creation of the overpayment, to include an explanation as to how the AOJ arrived at the debt amount. Additionally, there is no indication in the record that the AOJ even attempted to obtain these missing documents or to recreate them, in the event that documents are have been lost or destroyed. The Board also stresses that previous administrative efforts to obtain these records were not fruitful. As such, the Board has no reason to believe that further administration efforts at this juncture would yield a different result and therefore it is incumbent on the AOJ to obtain these records and associate them with the claims file. A review of the claims file also fails to reveal that the requested accounting was created. Rather, in the January 2021 SSOC, the AOJ stated that the Board requested that the AOJ “explain the accounting of this event in an additional supplemental statement of the case.” This “explanation,” however, does not comply with the terms of the Board prior remand actions in that the Board requested a specific accounting showing how the Veteran’s overpayment of VRAP benefits was calculated. As discussed in the June 2020 remand action, the accounting was to include listing all monies paid to or on behalf of the appellant and the dates on which those payments were made, as well as how VA arrived at the sum of the overpayment. Again, the Board stressed that that a detailed accounting is necessary because there exists a discrepancy when comparing the amount VRAP benefits purportedly issued by VA (and returned to the Veteran upon withdrawal from her program of study at College of the Albemarle in Elizabeth City, North Carolina) with the debt calculated. In this regard, the Board points out that the AOJ has stated that VA sent a payment to “Albemarle College on April 11, 2013, in the amount of $2,346.00 for the school attendance period of May 16, 2013 through July 29, 2013”; however, the calculated debt amount is stated to be $2,033.20. As the Board cannot discern from the record how that debt was calculated, the AOJ must provide a more detailed explanation. If it is the case that VRAP benefits were allowable for some portion of the term attended by the Veteran, the AOJ must discuss this, to include identifying how it arrived at the amount payable. The Board has also reviewed the reasons for the AOJ’s continued denial of the Veteran’s request for waiver as set forth in the January 2021 SSOC and cannot conclude from the reasons set forth therein that the AOJ in any way considered the Veteran’s August 2020 lay statement. Indeed, in the January 2021 SSOC, the AOJ simply stated that “The evidence clearly demonstrates receipt of overpayment on your part, a lump sum disability benefit payment near the same time period of the overpayment which would have allowed for the repayment of tuition overpayment without financial hardship to the veteran”. In her August 2021 statement, however, the Veteran set forth specific reasons for why repayment would result in financial hardship. The AOJ must consider this lay evidence and set forth specific reasons for rejecting it, if the AOJ determines that the Veteran’s lay evidence does not provide a basis for granting a waiver in this case. Overall, as the AOJ has not complied with the terms of the Board’s June or September 2020 remand directives, the Board has no choice but to again remand the matter. As a final point, the Board notes that the Veteran was previously sent a VA Form 5655 (Financial Status Report) and was requested to provide a detailed accounting of all of her average monthly income, expenses, and assets. The Veteran did not return that form. The Board reminds the Veteran that when VA requests that she supply certain information, it is her duty to do so, especially when the requested information may aid in substantiating her claim. The Veteran is encouraged to submit a current VA Form 5655 to VA. If the Veteran no longer has the form previously sent to her by VA, she can obtain one here. https://www.va.gov/vaforms/va/pdf/va5655.pdf. The matter is REMANDED for the following action: 1. Ensure compliance with the September 2020 Board remand, to include obtaining all relevant documents related to the creation of the debt and the Veteran’s request for waiver of recovery of indebtedness the Veteran’s request for waiver of recovery of the overpayment of VRAP benefits. In particular, the Veteran’s NOD disagreeing with the DMC’s denial of waiver request, the SOC addressing the issue of entitlement to a waiver of recovery of the debt resulting from the overpayment of VRAP benefits, and the May 2014 notification letter informing the Veteran of the DMC’s denial of her waiver request, as well as any documents informing the Veteran regarding the creation of the overpayment, to include an explanation as to how the AOJ arrived at the debt amount, must be obtained and associated with the record. All efforts to obtain this evidence must be documented and associated with the record. 2. Create a detailed yet straightforward accounting showing how the Veteran’s overpayment of VRAP benefits was calculated. Associate this accounting with the electronic claims file as well as provide a copy of this accounting to the Veteran. The creation of this accounting should be a separate action that is completed prior to any further adjudication of the Veteran’s claim. The accounting should include a list of all monies paid to or on behalf of the appellant and the dates on which those payments were made, as well as how VA arrived at the sum of the overpayment. If it is determined that payment of VRAP benefits for some portion of the term in question was warranted, the AOJ should explain in detail how it arrived at the amount of benefits payable. 3. After completing the above-requested actions, and any additional action(s) deemed warranted, adjudicate the claim on appeal. As part of the adjudication of the claim, the AOJ must consider and discuss the Veteran’s lay evidence submitted in August 2020. The AOJ should set forth specific reasons for rejecting this evidence, if the (Continued on next page) AOJ determines that the Veteran’s lay evidence does not provide a basis for granting a waiver in this case. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.