Citation Nr: 21029590 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 13-16 440 DATE: May 14, 2021 REMANDED The matter of whether a debt in the originally calculated amount of $56,005.40 for overpayment of VA educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) was properly created is remanded. The claim of entitlement to waiver of recovery of an overpayment of Chapter 33 educational assistance benefits in the originally calculated amount of $56,005.40 is remanded. REASONS FOR REMAND The Veteran had active service from May 2004 to January 2009. In July 2012, the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, informed the Veteran that he had been paid Basic Allowance for Housing (BAH) benefits twice due to having two Social Security numbers, which resulted in him being overpaid in the amount of $57,308.80. In August 2012, VA's Debt Management Center (DMC) informed the Veteran of an overpayment of VA education benefits in the calculated amount of $56,005.40. The Veteran then requested a waiver of recovery of the overpayment and in October 2012, the RO's Committee on Waivers and Compromises (COWC) denied waiver of recovery of the overpayment of VA education benefits in the amount of $57,308.80. In November 2012, the Veteran submitted a notice of disagreement with the creation of the debt in the calculated amount and with the COWC denial of the requested waiver. A statement of the case addressing the waiver denial was issued in March 2013 and the Veteran perfected an appeal to the Board. The Veteran appeared at a May 2015 hearing before the undersigned Veterans Law Judge at the RO in Oakland, California. The hearing transcript is of record. These claims were previously before the Board in March 2018 and July 2020, at which time they were remanded. Specifically, in both remands, it was noted that the record before the Board was incomplete, as the record did not contain the October 2012 COWC decision on the Veteran's request for waiver of recovery of indebtedness and any statement of the case issued to the Veteran, in addition to other potentially relevant documents. The Board found that the missing documentation prevented the Board's adjudication of the claims on appeal and remanded the matters for the Agency of Original Jurisdiction (AOJ) to locate the missing documentation and incorporate the evidence into the record. A review of the record shows that in September 2020, the entirety of the Veteran's education file was associated with the electronic claims file. The Board has reviewed the education file and is satisfied that records relevant to the matters on appeal are now available for review by the Board, to specifically include the March 2013 statement of the case, the October 2012 COWC decision on the Veteran's request for waiver of recovery, and certain documents pertaining to the creation of the debt. Therefore, the Board finds that there has been compliance with the terms of the previous remands. Stegall v. West, 11 Vet. App. 2681 (1998). Unfortunately, now that the Board is able to review the additional evidence relevant to the matters on appeal, the Board finds that the matters must again be remanded, and regrets further delay of an appellate decision. The Veteran has disputed the creation of the debt in this case. The Board notes that an overpayment debt is created when VA determines that a beneficiary or payee has received monetary benefits to which he was not entitled. 38 U.S.C. § 5302; 38 C.F.R. §§ 1.911, 1.962. A claimant has the right to dispute the existence and amount of the debt. 38 U.S.C. § 501; 38 C.F.R. § 1.911(c). In order for the Board to determine that the overpayment was not properly created, such that the debt was not valid, it must be established that the appellant was legally entitled to the benefits in question or, if the appellant was not legally entitled, then it must be shown that VA was solely responsible for the appellant being erroneously paid benefits. 38 C.F.R. § 21.9695(b) (overpayment of educational assistance paid to an eligible individual constitutes a liability of that individual unless the overpayment results from an administrative error or an error in judgment). A review of the record shows that, in an October 2009 letter, the Veteran was informed that he had been approved for receipt of Post-9/11 GI Bill benefits, effective August 15, 2009, to include receipt of a monthly housing allowance for each full month of training during any certified enrollment period. At that time, the Veteran's VA file number corresponded with his non-citizen social security number. In May 2012, the Veteran informed VA that he became a United States citizen on February 12, 2012, and had been issued a new social security number, which he provided to VA. The record shows that VA undertook to correct the Veteran's social security number in its system. In doing so, VA apparently again paid the Veteran BAH benefits for the period from August 17, 2009, to May 25, 2012. However, as it was reported that the Veteran had already been paid BAH for this period, an overpayment was created. Regarding the overpayment and resulting debt, the Board has characterized the issues on appeal as involving a debt in the originally calculated amount of $56,005.40. In August 2012, The VA DMC informed the Veteran of an overpayment of VA education benefits in the calculated amount of $56,005.40. However, the COWC has indicated that the original debt amount was $57,308.80, and it is that amount that was considered for waiver of recovery. Because of the discrepancy in the reported debt amount, the Board finds that before the Board can adjudicate whether the debt was validly created, remand is necessary for the AOJ to resolve the discrepancy and clarify the total overpayment and resulting debt charged to the Veteran. The Veteran has disputed that he received payment of VA educational assistance benefits after becoming a United Stated citizen. During a May 2015 hearing, the Veteran reported that shortly after receiving a new social security number, VA stopped paying educational assistance benefits for several months, after which he received back payment of benefits. The Veteran reported that it was unclear when he received a number of lump sum payments what those payments were for, stating his belief that was entitled to some payment of back benefits. In support of that assertion, the Board notes that the record contains e-mail correspondence dated in July 2012 wherein it is reported that VA should not have made certain payments to the Veteran, but simultaneously indicating that the Veteran was "due the other 3 payments." No further information regarding "the other 3 payments" was provided. Regarding the erroneous payments, the record shows that in July 2012, VA issued to the Veteran a number of lump sum payment checks, reportedly the duplicate payments of BAH for the period from August 17, 2009, to May 25, 2012. What is not shown in the record currently before the Board is the payments made to the Veteran under the non-citizen social security number. Because of the Veteran's assertions, the Board finds that on remand, a detailed accounting showing how the total overpayment debt (was calculated must therefore be prepared, sent to the Veteran, and associated with the record. That accounting should include listing all housing allowance payments made to the Veteran under both social security and VA file numbers, the dates on which those payments were made, and should detail how VA arrived at the sum of the housing overpayment. It must affirmatively be shown the Veteran received all housing benefits to which he was entitled for the period in question, and that he received the overpayments to another social security number, before it can be concluded that the payments made to him in July 2012 were duplicate payments. The matter must also be remanded for the AOJ to consider whether VA was solely responsible for the Veteran being erroneously paid benefits. It is clear that the Veteran alerted VA as to the change in social security number. It is also clear that some error occurred on the part of the VA in that the Veteran was issued duplicate payments when VA processed the change in social security number. In July 2012 e-mail correspondence, VA recognized the error and requested that the Treasury Department stop payment to the Veteran. Despite that, the AOJ gave no consideration to administrative error. The statement of the case does not cite to 38 C.F.R. § 21.9695 or show consideration of that provision. On remand, the AOJ must consider whether the debt was validly created, and consider whether the overpayment resulted from administrative error. The matters are REMANDED for the following action: 1. Create a clear accounting as to how the Veteran's total overpayment of Chapter 33 educational assistance benefits was calculated. All amounts paid to the Veteran for housing under both social security and VA file numbers, to include the dates on which those payments were made, should be listed. The accounting should clearly set forth the total amounts of BAH benefits to which the Veteran was entitled to during the period from August 17, 2009, to May 25, 2012, in comparison to the amounts paid under both social security or VA file numbers. Also, ss part of the accounting, the AOJ should resolve the discrepancy in the debt amounts between the $56,005.40 reported by the DMC and the $57,308.80 reported by the COWC and clarify the total overpayment and resulting debt charged to the Veteran. 2. Then, readjudicate the claims on appeal, to include both whether the debt was validly created and whether waiver of recovery of the overpayment amount is warranted. The AOJ must consider whether VA was solely responsible for the appellant being erroneously paid benefits. 38 C.F.R. § 21.9695(b) (overpayment of educational assistance paid to an eligible individual constitutes a liability of that individual unless the overpayment results from an administrative error or an error in judgment). If the AOJ determines that any portion of the overpayment was not due to administrative error, the AOJ must set forth specific reasons for that conclusion. If any decision is adverse to the Veteran, issue a supplemental statemen to the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts 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.