Citation Nr: 21028218 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-24 472A DATE: May 10, 2021 REMANDED Whether an overpayment of Department of Veterans Affairs (VA) disability compensation benefits was properly created is remanded. Entitlement to a waiver of the recovery of an overpayment of VA disability compensation benefits is remanded. REASONS FOR REMAND The Veteran served on several periods of active duty between July 2002 and February 2011. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 Regional Office (RO) rating decision. In December 2015, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In August 2016, the Board remanded this case for the AOJ to adjudicate the creation issue. The AOJ then adjusted the time period and amount of the debt. In May 2018, the Board again remanded this case for additional development, including obtaining clarification as to the Veteran's type of service and VA policy for that service, generating a comprehensive paid and due audit, and addressing whether there was sole VA administrative error in creation of the debt. In January 2021, the Board again remanded the case for further development and adjudication of the issue of whether the overpayment was properly created. It is now returned to the Board. As discussed below, unfortunately, there was not substantial compliance with the Board's previous remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, another remand is warranted. 1. Whether an overpayment of VA disability compensation benefits was properly created 2. Entitlement to a waiver of the recovery of an overpayment of VA disability compensation benefits As previously noted in the May 2018 and January 2021 Board remands, the history of this case is complex and requires clarification. For the sake of brevity, the Board will not duplicate the discussion previously outlined in the May 2018 Board remand; however, a copy of the previous Board remands must be provided to VA personnel accomplishing the remand directives. Per the January 2021 Board remand directives, the RO was directed to resolve whether VA policy allows concurrent benefits for any of the Veteran's active service, advising that the RO must address the contents of the June 2011 and May 2012 e-mails in a memorandum. It also directs that in a memorandum the RO address a comprehensive audit obtained by the RO, addressing if/when the Veteran was paid concurrent benefits, if any checks were not cashed or returned, the exact time period of the total overpayment and the amount thereof, as well as an explanation of the April 2011 payment and any other lump sum payments, including contacting the Veteran's Service Center (VSC) to research the history and reason for the payment. Per the September 8, 2020 Audit Report correspondence, the retroactive payment of $3,159.00 requires research by the VSC to determine its cause. Finally, the Board directed that the RO adjudicate the issue of whether the overpayment was properly created, specifically addressing the matter of sole VA administrative error. While the RO performed a comprehensive audit of the Veteran's account, it does not include a total amount of the current overpayment, total amount of any reduction of the overpayment debt due to reduction based on returned checks or payments, or the amount of overpayment debt remaining. Additionally, as noted above, the Board's remand directives indicated that the findings of the audit must be addressed in a memorandum; however, a discussion of the audit is not of record. Another remand is required so that the RO may issue a memorandum addressing the completed audit, including an explanation regarding the Veteran's assertion that he returned $3,159.00 worth of uncashed checks, if/when the Veteran was paid concurrent benefits, if any checks were not cashed or returned, the exact time period of the total overpayment and the amount thereof, as well as an explanation of the April 2011 payment and any other lump sum payments. While the RO provided a January 2021 VA memorandum, the information contained therein is insufficient. The RO noted that whether the Veteran had service under Title 10 or Title 32 he cannot get VA compensation and military pay at the same time, further explaining that it is prohibited by regulation. However, the memorandum does not discuss this policy in conjunction with the June 2011 and May 2012 e-mails, which indicate that an eligible person could receive concurrent VA compensation benefits and active duty payment if on active duty under Title 32 orders but not if under Title 10 orders. In addition, while the memo addresses the April 2011 payment and other lump sum payments, the record does not show any indication that the VSC was contacted as directed. Thus, remand is warranted to allow the RO to gather this information and address it in a new memorandum. Lastly, the AOJ was directed to adjudicate the creation of the debt issue, specifically addressing the matter of sole VA administrative error. While the RO adjudicated the creation of the debt issue in the March 2021 supplemental statement of the case (SSOC), there is no discussion of sole VA administrative error. Thus, remand is warranted to allow the RO to address the creation issue fully, including the matter of sole VA administrative error. Based on the review of the record, there is insufficient evidence of record to explain why the Veteran received payments he was not entitled to, attempted to return those payments, was then told he could keep the money, and was then assessed a debt. In sum, it is unclear if/when the Veteran was fully made aware of how his debt was created and calculated; clarification as to this issue is still needed. The matters are REMANDED for the following action: 1. Review the Board remand above as well as the previous August 2016, May 2018, and January 2021 Board remands and directives. 2. In a memorandum, the RO must address the following: (a.) The RO must clearly explain the findings from the comprehensive audit, including the total amount of the overpayment assessed at the time it was originally assessed, total reduction for any returned checks or payments, and the total amount of remaining overpayment debt assessed to the Veteran. (b.) The RO must ensure that the audit includes the Veteran's prior debts, payments not cashed or returned, if/when the Veteran was paid concurrent benefits, and all retroactive and/or lump sum payments issued to the Veteran, with an explanation as to why the Veteran was paid those amounts. All corresponding dates of service must be included. (c.) The RO must address the April 2011 payment and any other lump sum payments with an explanation as to when and why the Veteran was paid the amount(s). Per the September 8, 2020 Audit Report correspondence, the retroactive payment of $3,159.00 requires research by the VSC to determine its cause. The RO must contact the VSC to research the history and reason for the payment, and the record should indicate that such action was taken. 3. Re-adjudicate the issue of whether the overpayment was properly created, specifically addressing the matter of sole VA administrative error. If the overpayment in this case is determined to have been properly created without sole administrative error, entitlement to a waiver should again be considered. (a.) The matter of sole VA administrative error must be specifically addressed as it relates to the creation of the overpayment debt at issue. (b.) If the claim continues to be denied, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC) which addresses both the creation and waiver issues and afford them the opportunity to respond. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Labi, 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.