Citation Nr: 22044501 Decision Date: 08/04/22 Archive Date: 08/04/22 DOCKET NO. 14-12 179A DATE: August 4, 2022 REMANDED Whether the debt based on the overpayment of Department of Veterans Affairs (VA) pension benefits in the amount of $31,612.00 was validly created is remanded. Entitlement to waiver of recovery of an overpayment of VA pension benefits in the amount of $31,612.00 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1974 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 decision by the Committee on Waivers and Compromises (COWC) of the VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a December 2016 Board videoconference hearing. A transcript of this hearing is associated with the Veteran's claims file. This matter was previously before the Board several times, most recently in May 2022. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue pertaining to the validity of the debt. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In particular, the May 2022 remand pointed out a due process error on the part of the RO in not providing the Veteran with any indication of his right to appeal the December 2021 determination related to the validity of the debt at issue. As noted in the prior remand, a decision by VA includes timely notice of such decision and the notice shall include an explanation of the procedure for obtaining review of the decision. 38 U.S.C. § 5104(a). The RO's December 2021 adjudication of the validity of the debt issue was without the required due process notice of the Veteran's appellant rights. The Board again notes that, at this juncture, the tolling of the Veteran's appellate rights has not commenced. The failure of a veteran or his representative to receive notice of a rating decision can render a decision non-final. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (a claim will be considered to be pending if VA has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995); Hauck v. Brown, 6 Vet. App. 518, 519 (1994). In this case, following the Board's remand no action was taken to provide the Veteran with notice of his appellate rights with regard to the decision on the validity of his debt. Internal communication merely indicated that because IVM documents are no longer available, no decision on validity can be made. The Board does not require new evidence to be sought. Rather, the error noted in the prior remand was the absence of notification of appellate rights with the December 2021 adjudication of the validity of the debt. This error has not been cured by nonaction on the part of the RO following the Board's most recent remand. Because the Veteran still has not been afforded his due process rights with regard to the December 2021 decision, additional remand is necessary. Finally, as noted by the Board in its prior remands, adjudication of the validity of the debt must occur prior to a decision on the matter of whether a waiver is warranted. Schaper v. Derwinki, 1 Vet. App. 430, 437 (1991). The matter of the Veteran's request for a waiver of recovery of the overpayment must, therefore, also be remanded. The matters are REMANDED for the following action: 1. The RO should provide the Veteran with his appellate rights related to the decision as to the validity of the debt at issue. This was adjudicated in December 2021 without any indication of the Veteran's right to appeal. The formal adjudication of the issue of whether the debt in the amount of $31,612.00 was validly created, to include notifying the Veteran of how this debt was created and the reasons the RO found its creation to be valid, must be reissued. The Veteran and his representative should be notified of this decision and the Veteran's appellate rights should also be provided. 2. Once the formal adjudication of the validity has occurred, if the debt is found valid, the Veteran's claim for waiver should be readjudicated. If the waiver claim remains denied, it should be returned to the Board for adjudication. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.