Citation Nr: 21041955 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-07 677 DATE: July 10, 2021 REMANDED Entitlement to a waiver of recovery of an overpayment of transferred educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) in the amount of $15,168.20 for tuition/fees, books/supplies, and a housing allowance, and any associated interest paid, and to include whether the debt was validly created, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from May 1986 to October 1997, from June 2004 to May 2006, and from August 2006 to October 2010 with additional periods of service in the Marine Corps Reserves. The appellant is the Veteran's daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which found that the appellant was overpaid Post-9/11 GI Bill educational assistance benefits in the amount of $54,919.43. The appellant appealed the decision. The appellant and the Veteran testified before the undersigned Veterans Law Judge at a February 2020 videoconference hearing. A transcript of this hearing is of record. This case was last before the Board in January 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Entitlement to a waiver of recovery of an overpayment of transferred educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) in the amount of $15,168.20 for tuition/fees, books/supplies, and a housing allowance, and any associated interest paid, and to include whether the debt was validly created, is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the appellant's claims and to afford her every possible consideration. An overpayment is created when VA determines that a beneficiary or payee has received benefit payments in excess of the amount due or to which such beneficiary or payee is entitled. 38 C.F.R. § 1.962. The debtor may challenge the validity or amount of the debt owed. See 38 C.F.R. § 1.911(c)(1); see also VAOPGCPREC 6-98; Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). The debtor may also apply for a waiver of any debt found to be valid. See 38 U.S.C. § 5302; 38 C.F.R. §§ 1.911(c)(2), 1.963. The issue of whether the underlying debt is valid is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430 (1991). In this case, the Board finds that before it can reach the question of whether the education debt at issue in this case was validly created, the matter must be remanded to obtain all relevant records related to the Veteran's discharge from service. Here, the Veteran (and appellant) have consistently asserted that he was involuntarily retired from service, prior to his service obligation being completed. See, e.g., March 2015 Correspondence; February 2020 Hearing Transcript, pp. 2-3. A United States Marine Corps Headquarters memorandum suggests that the Veteran retired, and references a February 17, 2012 request. However, no such request is of record. In fact, the memorandum references several enclosures that are not included with the claims file. Indeed, the record does not include any other information related to the Veteran's retirement or any other service personnel records, other than his DD-Form 214s. As such, the matter must be remanded to obtain all relevant records related to the Veteran's discharge from service, so as to determine the circumstances of his separation from service prior to his service obligation date. Also, while this matter is on remand, to ensure that the record is complete, the AOJ should also give the appellant and/or Veteran another opportunity to provide additional information and/or evidence pertinent to the appeal. The matters are REMANDED for the following action: 1. Ask the Veteran and/or appellant to provide any additional information and/or evidence pertinent to the claim on appeal, to include the claimed January 2020 VA notification letter or documents relating to his service discharge. Allow a reasonable amount of time for the Veteran and/or appellant to respond. 2. Contact the National Personnel Records Center, the Veteran's reserve unit(s), and any other appropriate facility to obtain the Veteran's complete active duty and reserve service personnel records, to include all records related to the Veteran's discharge from service. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the appellant. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. In addressing whether the education debt was validly created, consider and address whether the circumstances of the Veteran's separation from service prior to his service obligation date qualify for an exception to the general rule that failure to complete the service agreed to in accordance with the terms of the agreement of the individual under individual under 38 U.S.C. § 3319(b)(1) will result in an overpayment of educational assistance benefits used by a transferee. If the benefit sought remains denied, the appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.