Citation Nr: 22017715 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 10-04 769 DATE: March 26, 2022 REMANDED Whether the debt created from the simultaneous payment of Dependency and Indemnity Compensation (DIC) by VA and Survivors Benefits Plan (SBP) by the Department of Defense (DOD) was validly created. REFERRED The claim for a waiver of the recovery of the overpayment of simultaneous payment of DIC and SBP is again referred for appropriate action. REASONS FOR REMAND The Veteran served on active duty from January 1962 to October 1962. In addition, he served in the National Guard. The Veteran died in September 2003. The appellant is his widow. The matter is on appeal of an April 2009 RO determination. In May 2010, the appellant testified at a Board hearing. In June 2011 and May 2018, the Board remanded the matter for additional development. Whether the debt created from the simultaneous payment of DIC by VA and SBP by the DOD was validly created. Pursuant to the Board's May 2018 remand, a specific accounting was obtained from Defense Finance and Accounting Services (DFAS) of the amount of SBP paid to the appellant during the applicable period. See August 2021 Correspondence. However, the most recent January 2022 supplemental statement of the case (SSOC) does not reference any governing authority upon which to offset the VA benefit for the SBP payments from DOD. Therefore, the SSOC did not comply with the regulations, notably 38 C.F.R. § 19.29 (2018) (requirements for statement of the case (SOC)). Accordingly, remand is warranted. As noted in the prior remand, DIC payments were retroactively withheld to offset SBP payments the appellant was receiving concurrently with DIC. See April 2009 & September 2008 Notification Letters. In Roberts v. McDonald, the Court held that in situations such as this, VA must provide an appellant with notice of the statutes and regulations regarding recoupment of overpayment, including 10 U.S.C. § 1450 and those allowing VA to collect the overpayment, 27 Vet. App. 108, 110 (2014). Roberts, 27 Vet. App. at 110. The applicable sections that allow VA to collect overpayment by offset are 38 U.S.C. § 5314 and 38 C.F.R. §§ 1.911, 1.912a. Further, section 1.911 secures for the debtor the right to informally dispute the existence or amount of the debt, to request waiver of collection of the debt, to a hearing on the waiver request, and to appeal the VA decision underlying the debt. That section also requires notice from VA to the debtor of the exact amount of debt, specific reasons for debt, rights and remedies including the requirements for waiver of the debt, that collection may be offset from current or future VA benefits, that interest and administrative costs may be assessed as appropriate, that the debtor shall have the opportunity to inspect and copy records, and that the debtor shall have the opportunity to enter into a repayment agreement. Additionally, section 1.912a(c) provides that if the debtor, within thirty days of the date of the notification, disputes, in writing, the existence or amount of the debt, offset shall not commence until the dispute is reviewed. The Board notes that, in February 2018, the appellant was notified that the Veterans Law Judge who conducted the May 2010 hearing retired from the Board and indicated that she was entitled to another hearing. The letter was mailed to the appellant's then current address of record. However, it was returned as undeliverable. If, following this remand, another Board hearing is desired, the appellant may request one. (Continued on the next page) The matter is REMANDED for the following action: Issue a SSOC that provides notice to the appellant of the applicability of 38 U.S.C. §§ 5304, 5314 and 38 C.F.R. §§ 1.911, 1.912a in compliance with Roberts. The appellant should also be provided an accounting of how the amount of offset was determined and whether this was found to be an overpayment of SBP benefits to include per the August 2021 DFAS payment worksheet (which has not been provided to her.) The verification of the actual payments of SBP from DOD/DFAS should additionally be furnished to the appellant, along with a copy of the May 2018 Board remand. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.