Citation Nr: 21014354 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-25 391A DATE: March 12, 2021 REMANDED The issue of a waiver of recovery of an overpayment of National Services Life Insurance (NSLI) proceeds in the amount of $8,175.34 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1944 to January 1949. He died in September 2010. The appellant in this appeal is the Veteran’s daughter. This appeal before the Board of Veterans’ Appeals (Board) arose from a September 2013 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, informed the appellant that the Committee of Waivers and Compromises (COWC) had denied her request for waiver of indebtedness in the amount of $8,175.34. The appellant disagreed with that determination and this appeal ensued. The instant matter was then before the Board in January 2020, at which it was remanded for the agency of original jurisdiction (AOJ) to obtain and associate with the record certain relevant documents relied upon by COWC to deny the appellant’s request for waiver; the AOJ was to also obtain the COWC decision itself. Unfortunately, the Board finds that additional AOJ action is necessary, even though such will, regrettably, further delay an appellate decision on 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 January 2020 remand reveals that the Board directed that, on remand, the AOJ was to associate with the claims file all relevant documents related to the appellant’s request for waiver of recovery of indebtedness, to specifically include the COWC decision itself, and all records related to the investigation concerning the validity of the January 2001 Designation of Beneficiary form. The Board stated specifically that all findings made by the forensic expert, to specifically include any findings of fraud, must be associated with the record. Notably, a review of the record fails to show that the AOJ undertook any efforts to associate forensic expert’s report with the claim file, as the record is still devoid of this evidence. Accordingly, as the AOJ failed to ensure compliance with the terms of the Board’s prior remand, another remand is required. In this regard, the Board notes that the file contains two document entries titled “Insurance Appeal” and “Government Life Insurance Forms.” The Board has again reviewed these files, as well as the rest of the record, to ensure that the necessary documents were not included in these document entries upon remand from the Board. Although the record now includes the COWC decision itself, which was previously thought to be missing from the record, there are no documents in these files, or otherwise in the record, related to the forensic expert’s investigation. The Board points out that in an April 2013 letter, the RO informed the appellant and “[t]he forensic expert compared (18) documents from the insured’s records and handwriting samples[; t]he forensic examiner determined there were indications that your father did not author the signature on the latest designation of record.” Unfortunately, the forensic expert’s report, to include the documents relied upon in the creation of the report, have still not been made available for review by the Board. Again, the Board stresses the forensic expert’s report, and all documentation relied in the creation of that report, is relevant to the matter currently before it, as the report and related documents may contain information that tends to prove or disprove any element relevant to whether a waiver may be granted in this case, to include whether fraud exists. See 38 U.S.C. § 5302(c) (providing that recovery of overpayment may not be waived if, in the Secretary’s opinion, there exists in connection with the claim for such waiver an indication of fraud, misrepresentation or bad faith); 38 C.F.R. §§ 1.962, 1.963. 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. Accordingly, as there was not substantial compliance with the January 2020 Board remand directives, as the records identified as missing have not been obtained and there is no indication that the records are not feasibly available, the Board finds it necessary to again remand the claim on appeal to ensure that the AOJ obtains all relevant records related to the investigation concerning the validity of the January 2001 Designation of Beneficiary form. The matter is REMANDED for the following action: Ensure compliance with the January 2020 Board remand, to include obtaining all records related to the investigation concerning the validity of the January 2001 Designation of Beneficiary form. In particular, the forensic expert’s report, relief upon by the COWC, must be obtained and associated with the record, as well as all documents provided to/reviewed by the forensic expert. All efforts to obtain this evidence must be documented and associated with the record. 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.