Citation Nr: A25035336 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241216-512905 DATE: April 16, 2025 ORDER The request for a waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits was timely filed; to this extent only the appeal is granted. REMANDED Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits, to include whether the debt amount was validly created, is remanded. FINDINGS OF FACT 1. On October 10, 2022, the Veteran was notified of an overpayment due to the retroactive removal of his spouse on his compensation award and was told he had 180 days to request a waiver of the recovery of this debt. 2. On October 31, 2022, the Veteran timely responded. CONCLUSION OF LAW The Veteran's request for waiver of recovery of an overpayment of VA compensation benefits was timely filed. 38?U.S.C. §?5302(a); 38?C.F.R. §?1.963 (b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from February 1969 to February 1971. In the December 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the evidence submission docket and a videoconference hearing; he clarified his request for the Direct Review docket in February 2025 and did not indicate the desire for a videoconference hearing. Therefore, the Board may only consider the evidence of record at the time of the September 2024 Decision on Waiver of Indebtedness issued by the Committee on Waivers and Compromises, the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claim. 38 C.F.R. § 3.103(c)(2)(ii). Of note, under 38 C.F.R. § 20.202(c)(2) the Veteran has until September 2025 or February 2026 to modify his choice of Board appeal lane, and the "Board ordinarily may not decide an appeal before this time period is up." See Williams v. McDonough, 37 Vet. App. 305 (2024). However, because a full grant of the issue of timeliness on appeal is warranted, the Veteran is not prejudiced by the Board issuing this decision without such a delay. 1. The request for a waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits was timely filed; to this extent only the appeal is granted. The Veteran asserts that he timely filed a request for waiver of overpayment of compensation benefits and the Board agrees. Under applicable criteria, a request for waiver of an indebtedness shall only be considered if made within 180 days following the date of a notice of indebtedness to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrates, as a result of error by either the VA or the postal authorities, or due to other circumstances beyond the debtor's control, there was a delay in such individual's receipt of the notification of indebtedness beyond the time customarily required for mailing. If the debtor does substantiate there was such a delay in the receipt of the notice of indebtedness, the 180-day period shall be computed from the date of the debtor's actual receipt of the notice of indebtedness. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b)(2). In this case, the Veteran was notified in September 2022 that his spouse had been removed from his award effective March 1, 2004 because the Veteran had not confirmed her continued dependency. On October 10, 2022, a Demand Letter in the amount of $13,346.74 was sent to the Veteran and he was informed that he had 180 days to seek waiver and to submit a Financial Status Report. On October 31, 2022, the Veteran responded to the Demand Letter with an Application Request To Add and/or Remove Dependents. He provided the date of his divorce as October 15, 2007 and wrote that his spouse, "left me -stole things." Although the Veteran did not use a Financial Status Report, the Board construes this submission as a timely request for waiver. In September 2024, the Committee determined that the waiver request received in April 2024 was untimely. No mention was made of the Veteran's October 2022 submission, and why it was, or was not, a timely request for waiver. Of note, the April 2024 waiver request cited in the decision is not included in the file. Affording the Veteran the benefit of the doubt, the Board finds the October 2022 submission from the Veteran was a timely response to the October 2022 Demand Letter and constituted a request for waiver of recovery of an overpayment. To this extent only, the appeal is granted. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits, to include whether the debt amount was validly created, is remanded. Due to the Board's finding of a pre-decisional duty to assist error as shown in the above grant, the issue of waiver of recovery of the overpayment must now be adjudicated by the AOJ. 38 C.F.R. § 20.802(a). The Board notes that the Veteran was initially informed in April 2022 that his spouse, E.H., was removed from his award effective April 1, 2022. In response, on May 3, 2022, the Veteran called VA and stated that he had informed VA that he was no longer married on February 14, 2012, and asked whether he had been receiving extra pay for his ex-spouse. The Board observes that the record contains a VA Form Status of Dependents Questionnaire form showing no spouse and no children dated, "2-15-12" and received by VA on February 21, 2012. Then, in September 2022, the Veteran was informed that E.H. was removed from his award effective March 1, 2004 because he did not confirm her dependency, after she had been added to his award, effective November 8, 2003. Subsequently, a Demand Letter dated October 10, 2022, in the amount of $13,346.74, was sent to the Veteran. It is unclear how that debt amount was determined in light of the evidence of record outlined above. The Court of Appeals for Veterans Claims (Court) held in Schaper v. Derwinski, 1?Vet. App.?430, 437 (1991) that the propriety and amount of the overpayment at issue are matters that are integral to a waiver determination, and when the issue of the validity of the debt is raised, "it is arbitrary and capricious and an abuse of discretion to adjudicate the waiver application" without first deciding the challenge to the lawfulness of the debt. Thus, resolution of the creation issue must precede consideration of the waiver issue. Accordingly, a remand is required to ascertain the validity of the amount of the debt, as well as to adjudicate the waiver request. 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: 1. Cease all collection and recoupment activity. 2. Calculate any overpayment created for payments made to the Veteran for a spouse when he was no longer married in light of his informing VA in February 2012 that he had no spouse and his reported date of divorce in October 2007. Provide the Veteran and his agent with the results. 3. Prepare a month-by-month audit showing any overpayment, as well as all monies already collected. Provide the audit to the Veteran and his agent. (Continued on the next page) ? 4. Then, adjudicate the waiver request, to include obtaining a current Financial Status Report. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nelson, L. 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.