Citation Nr: 21022332 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-29 439 DATE: April 15, 2021 ORDER The appeal seeking entitlement to a waiver of a $31,140.29 debt due to an overpayment in VA disability compensation benefits as a result of failure to withhold attorney fees is dismissed. REMANDED The validity of a $31,140.29 debt due to an overpayment in VA disability compensation benefits as a result of failure to withhold attorney fees is remanded. FINDING OF FACT The overpayment created when VA retroactively reduced the Veteran’s VA disability compensation due to a failure to withhold attorney fees from an award of past-due benefits was waived by the Committee on Debt and Waivers (COWC) in August 2020. CONCLUSION OF LAW The criteria for dismissal of the appeal seeking entitlement to a waiver of a $31,140.29 debt due to an overpayment in VA disability compensation benefits as a result of a retroactive reduction in payment rate due to a failure to withhold attorney fees from an award of past-due benefits have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty during the Gulf War Era and Peacetime from October 1984 to January 1996. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a May 2017 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded the appeal to the RO for additional development. The appeal has been returned to the Board for further consideration. The Board has noted that in addition to the issues involving the overpayment, the Veteran has also perfected an appeal pertaining to claims for an increased disability rating for major depressive disorder with anxiety disorder and somatic symptom disorder (claimed as innocently acquired psychiatric disorder other than post-traumatic stress disorder (PTSD), including depression, anxiety, and undifferentiated somatoform disorder) from August 1, 2006 until July 16, 2012; and entitlement to individual unemployability from August 1, 2006 until July 16, 2012. However, the Veteran has not been afforded a requested hearing on those issues. Accordingly, the Board will not address those issues at this time. Entitlement to a waiver of a $31,140.29 debt due to an overpayment in VA disability compensation benefits as a result of failure to withhold attorney fees In an August 2020 decision, the COWC granted a waiver of the full amount of the Veteran’s overpayment debt. As such, this claim is dismissed as a matter of law, as there remains no case or controversy, or dispute of fact or law, regarding this issue. See U.S.C. § 7105. The benefit sought on appeal was granted. The claim is therefore dismissed. REASONS FOR REMAND The development directed by the Board in the August 2019 remand was not accomplished. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the August 2019 remand, the Board found that the Veteran raised the issue of the proper creation of the debt, to include the matter of sole administrative error. 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. Schaper v. Derwinski, 1Vet. App.430, 437 (1991) (“when a Veteran raises the validity of the debt as part of a waiver application... it is arbitrary and capricious and an abuse of discretion to adjudicate the waiver application without first deciding a veteran’s challenge to the lawfulness of the debt asserted against him or her”); VAOPGCPREC 6-98 (July 24, 1998) (holding that when a veteran challenges the validity of the debt and seeks waiver of the debt, the [Regional Office] must first fully review the debt’s validity and, if the office believes the debt to be valid, prepare a written decision fully justifying the validity of the debt before referring the waiver request to the Committee on Waivers and Compromises). A debtor may dispute the amount or existence of a debt, which is a right that may be exercised separately from a request for waiver or at the same time. 38 C.F.R. §1.911(c)(1). As this development has not been completed, a remand is necessary to adjudicate the issue of the validity of the overpayment debt. The Veteran’s claims file does not presently reflect a Debt Management Center (DMC) demand letter for the original overpayment debt. The DMC records must be associated with the file. The matters are REMANDED for the following action: 1. Associate with the file all DMC demand letters sent to the Veteran. 2. Adjudicate the issue of whether the overpayment of compensation benefits in the amount of $31,140.29 was properly created, to include the raised issue of sole VA 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.