Citation Nr: 21025467 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-44 956 DATE: April 28, 2021 REMANDED Whether an overpayment was properly created due to concurrent receipt of Veterans Affairs (VA) compensation benefits and drill pay is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans’ Appeals on appeal from a May 2018 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded the appeal to the RO for additional development. The appeal has been returned to the Board for further consideration. Whether an overpayment was properly created due to concurrent receipt of Veterans Affairs (VA) compensation benefits and drill pay Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claim so that every possible consideration is afforded. The November 2019 Board remand directed the RO to obtain a complete statement of the Veteran’s dates of active service, to verify the Veteran’s dates of active service, to include training days and/or drill pay days, since May 2010, and to prepare a paid and due audit of the Veteran’s VA compensation account since fiscal year 2010, with consideration of any confirmed training days. In March and April 2020, personnel records and DFAS leave and earning statements were associated with the Veteran’s file. In June 2020, a paid and due audit was associated with the record. In the July 2020 Supplemental Statement of the Case (SSOC), the RO determined that the Veteran’s’ overpayment debt was validly created, stating that, per the Defense Manpower Data Center, the Veteran had active duty from August 17, 2009 to August 5, 2013 and that VA cannot override the official Department of Defense notification of additional active duty. However, a review of the evidentiary record, to include DFAS leave and earning statements, orders issued by service department, and previous relevant VA adjudications, indicates that the Veteran was not continuously on active duty from August 2009 to August 2013. 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. See 38 C.F.R. § 1.911 (c)(1); see also VAOPGCPREC 6-98 (April 24, 1998). The propriety and amount of the overpayment at issue are matters that are integral to a waiver determination. See Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991) (“[W]hen 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 the veteran’s challenge to the lawfulness of the debt asserted against him or her.”); see also Narron v. West, 13 Vet. App. 223 (1999). In this case, the amount of the overpayment debt remains unclear. A review of the history of the facts is helpful in this case. In May 2015, VA Forms 21-8951-2 were received for Fiscal Years (FY) 2011 and 2012. The forms indicated that the Veteran had 177 training days during FY 2011 and 40 training days during FY 2012. The Veteran completed and signed the forms, indicating that he received no military pay and allowances for the years in question. In an August 2016 notification letter, VA informed the Veteran that his VA disability compensation would be reduced based on 177 days of drill pay during FY 2011 and 40 days of drill pay during FY 2012. VA also informed the Veteran that no overpayment was created due to these actions. In an October 2016 notification letter, VA informed the Veteran that his VA compensation benefits were terminated from July 2, 2012 to August 5, 2013 based on a return to active duty service during that period. In November 2016 the Veteran was informed that the VA actions created an overpayment in the amount of $21,251.93. In October 2017, Congressional correspondence was received which included the Veteran’s assertion that his active duty orders were rescinded. The documentation submitted in support of the Veteran’s assertion included a Department of the Army order rescinding the active duty order. In February 2018, a Department of Defense status report was associated with the record, showing that the Veteran had active duty service from August 17, 2009 to August 5, 2013. Based on this report, VA proposed to terminate the Veteran’s VA compensation benefits from August 2009 to August 2013. In a May 2018 notification letter, VA informed the Veteran that his VA compensation benefits were terminated from August 17, 2009 to August 5, 2013 based on a return to active duty service during that period. The Veteran was informed that the VA actions created an overpayment. No demand letter showing the amount of the debt has been associated with the record. In May 2018, the Veteran requested a waiver by submission of a financial status report. In August 2018, a Notice of Disagreement (NOD) was received. The Veteran challenged the validity of the debt, indicating that the Debt Management Center informed him that the amount of the debt was $50,000. The Veteran asserted that he was discharged from active duty in May 2010 and was transferred to a Reserve unit that same month. The Veteran stated that he was ordered to active duty in July 2012 but that the order was revoked. The Veteran submitted his retirement points worksheet in support of his statements regarding his service, and asserted that DFAS agreed with him in a phone call but would not provide written support. The Veteran also submitted a June 2018 statement from the executive director of the Benefits Assistance Service indicating that the Veteran’s last period of active duty service ended on May 20, 2010, and copies of the orders supporting his statements regarding his date of discharge, Reserve reassignment, and revocation of active duty orders. The Veteran indicated that his VA compensation was withheld beginning November 2017. The Veteran thereafter perfected an appeal by submission of an August 2018 VA Form 9. In a September 2018 Decision of Waiver of Indebtedness, the Committee on Waivers and Compromises (COWC) of the RO granted a waiver of the overpayment debt in the amount of $21,251.93, finding that the active duty orders for the period from July 2, 2012 to August 5, 2013 were revoked. In a December 2018 phone call, the Veteran was informed that he has “multiple debts pending”. The Veteran was not provided with the details of these debts. Although the Veteran has been granted a waiver in the amount of $21,251.93 for the period from July 2, 2012 to August 5, 2013, the record indicates that VA terminated his benefits from August 17, 2009 to August 5, 2013. See May 2018 Notification Letter. The Veteran disputed the validity of this debt in the August 2018 NOD, indicating that the amount of the debt was $50,000 and that he had no active duty service after May 2010. Further complicating matters, VA previously informed the Veteran that based on training days which occurred during FYs 2011 and 2012, his benefits would be withheld but that no overpayment was created. This notification appears to be in conflict with VA’s later determination that the Veteran was on active duty from 2009 to 2013. In addition, the actual amount of the overpayment debt remains at issue. As noted above, the Veteran has stated that the amount of the debt was $50,000. The Veteran has also submitted a waiver request accompanied by a statement that the debt amount is $53,000. See May 31, 2018 Third Party Correspondence. Based on the foregoing, the Board finds that the Veteran has disputed the validity of the debt and requested a waiver of debt for the period of August 17, 2009 to August 5, 2013. A remand is necessary so that the RO can provide a clear and detailed statement as to how the debt from the period from August 17, 2009 to August 5, 2013 arose and how that debt was calculated. The matters are REMANDED for the following action: 1. Obtain and associate with the record the demand letter issued pursuant to the May 2018 notification letter informing the Veteran that his VA compensation benefits were terminated from August 17, 2009 to August 5, 2013, and or other Debt Management Center (DMC) notices related to the debts perfected on appeal. 2. Provide another audit, statement, or other appropriate explanation of the Veteran’s account. This audit or statement should include a clear and detailed explanation of the amount and source of any overpayment debt arising from the period from August 17, 2009 to August 5, 2013. The Veteran should be provided with a copy of this audit or statement. 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.