Citation Nr: 1736622	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-24 885	)	DATE
	)
	)

On appeal from the Committee on Waivers and Compromises (Committee), Department of Veterans Affairs (VA) Debt Management Center (DMC), 
Fort Snelling, Minnesota


THE ISSUE

Entitlement to waiver of debt resulting from overpayment of VA death pension benefits in the amount of $7,782.


REPRESENTATION

Appellant represented by:	Dawn M. Weekly, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant 


ATTORNEY FOR THE BOARD

L. Durham, Counsel


INTRODUCTION

The Veteran served on active duty from September 1974 to September 1977.  He died in April 2008.  The appellant is his widow.

This matter comes before the Board on appeal from a March 2012 decision of the Committee that the appellant had failed to file a timely request for a waiver of debt resulting from overpayment of VA death pension benefits.  The appellant presented sworn testimony in support of her appeal during a hearing before the undersigned Veterans Law Judge in October 2014. 

In January 2015, the Board determined that the appellant filed a timely request for waiver of the debt resulting from overpayment of VA death pension benefits and remanded the issue of entitlement to waiver of debt resulting from overpayment of VA death pension benefits for further development.

Additionally, in the January 2015 determination, the Board noted that, in 2012, the appellant also challenged the validity of the debt; questioning how the monetary amount of the debt was calculated.  The June 2011 DMC calculation of the appellant's debt amounted to $13,220.  Another calculation yielded the amount of $14,542.  In May 2013, the Pension Management Center re-calculated the appellant's income and expenses for the year 2009, which had the effect of reducing the overpayment to $7,782.  This is the figure the Board has used for purposes of this decision.  However, it is unclear whether the death pension checks which the appellant returned to VA un-cashed were included in this calculation.  Moreover, at her hearing, she argued the $5,000 VA considered income from an IRA was actually life insurance proceeds and that the $3,900 VA counted from an IRA was actually $3,300.  Therefore, this issue was referred by the Board in the January 2015 determination for consideration by the appropriate VA office.  No such consideration has been provided.  As such, the issue of the validity of this debt is REFERRED once again to the appropriate VA office to review the May 2013 calculations and ensure their accuracy or amend them as appropriate, considering the returned checks, whether the $5,000 was from life insurance, and whether the IRA was $3,900 or $3,300. 

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Additional development is needed prior to the adjudication of the claim on appeal. 

As noted above, the issue as to whether the debt resulting from overpayment has been validly created has not been adjudicated by the AOJ or an appropriate original VA office.  This issue was referred to the AOJ in January 2015 for adjudication, which has not been completed.  The Board notes that it is improper to adjudicate an application for waiver without first determining the lawfulness of the debt asserted.  Schaper  v. Derwinski, 1 Vet. App. 430 (1991).  As such, the Board finds the issue of entitlement to waiver of debt resulting from overpayment of VA death pension benefits in the amount of $7,782 to be inextricably intertwined with the issue of the validity of this debt.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  The Board cannot fairly proceed in adjudicating this issue until any outstanding matters with regard to the whether the debt was validly created have been resolved.



Accordingly, the case is REMANDED for the following action:

After, and only after, the issue of the whether the debt resulting from overpayment of VA death pension benefits in the amount of $7,782 is valid has been adjudicated, readjudicate the issue of entitlement to waiver of debt resulting from overpayment of VA death pension benefits in the amount of $7,782.  If the determination remains unfavorable to the appellant, she and her representative should be provided with a supplemental statement of the case (SSOC).

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


_________________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).


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