Citation Nr: 22015647
Decision Date: 03/18/22	Archive Date: 03/18/22

DOCKET NO. 13-13 924
DATE: March 18, 2022

REMANDED

The issue of entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) improved pension benefits in the amount of $22,252.80 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1988 to December 1991.

In July 2018, the Veteran testified at a Board of Veterans' Appeals (Board) hearing.  A transcript of the hearing is associated with the record. 

The Veteran was informed via an April 2021 letter that the Veterans Law Judge who had conducted the July 2018 videoconference hearing was no longer with the Board.  The letter informed him that he could request a hearing with a new Veterans Law Judge who would then be able to decide his appeal.  The Veteran did not reply to this letter, and the Board has proceeded with the adjudication of this appeal.

In October 2018 and June 2021, the Board remanded the appeal to the RO for additional development.  Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Appellant's claim so that he is afforded every possible consideration.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

In December 2021, the RO issued a supplemental statement of the case (SSOC).  However, the Board notes that a copy of the SSOC was not sent to the Veteran's representative as required by VA regulations.  See 38 C.F.R. § 19.31.  On the same date the SSOC was issued, a signed copy of VA Form 21-22 appointing the Veteran's current representative was associated with the record.  Given the lack of notice, the Veteran's representative did not have the opportunity to respond to the SSOC within the requisite 30 days prior to the transfer of the case back to the Board.  See 38 C.F.R. § 20.5 stating "an appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person."  Accordingly, remand is warranted to cure this due process error.

The matters are REMANDED for the following action:

Send a copy of the December 2021 SSOC to the Veteran's representative and allow her 30 days to respond to such prior to returning the case back to the Board.

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Bynum, 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.