Citation Nr: 18160524
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 12-04 814A
DATE:	December 28, 2018
The issue of whether an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $11,434.00 due to change in dependency status was validly created is REMANDED.
The issue of entitlement to waiver of the overpayment debt in the amount of $1,767.00 is REMANDED.
The Veteran served on active duty in the United States Marine Corps from January 1978 to January 1982.
In January 2017, the Veteran testified before the undersigned Veterans Law Judge at the Regional Office (RO).  A transcript of the hearing is associated with the record.
The appeal was previously remanded in October 2016 and October 2017.  In a November 2018 decision on waiver of indebtedness, the Committee on Waivers and Compromises (COWC) granted partial waiver of the Veteran’s overpayment debt in the amount of $9,767.00, and denied waiver on the remaining $1,767.00.  The appeal was returned to the Board.
While further delay is regrettable, the Board finds the claim contesting the creation of the overpayment debt due to a retroactive reduction of compensation benefits for a dependency change in the amount of $11,434.00 must be remanded for an initial adjudication by the Agency of Original Jurisdiction (AOJ).  The Board’s October 2017 remand specifically instructed that the issue of validity of the debt, to include whether the amount of the overpayment debt was proper, be formally adjudicated by the AOJ after development was undertaken.  A November 2018 Decision on Waiver of Indebtedness addresses only the waiver issue and not the issue related to creation of the debt.  In any event, the Board finds a Statement of the Case (SOC) is required.  See 38 C.F.R. § 19.31(a) (in no case will a SSOC be used to announce decisions by the AOJ on issues not previously addressed in the SOC).
Resolution of the creation of debt issue must precede consideration of the remaining waiver issue.  Therefore, further appellate review by the Board of the Veteran’s waiver claim must be deferred pending formal adjudication of the threshold determination on the propriety of the creation of the debt.  Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991); VAOPGCPREC 6-98 (July 24, 1998).
The matters are REMANDED for the following action:
1. Issue an SOC addressing the issue of whether an overpayment of compensation benefits was properly created in the amount of $11,434.00.
2. After the issue regarding whether the overpayment was properly created is resolved to the Veteran’s satisfaction, perfected on appeal, or finally denied, issue a Supplemental Statement of the Case that addresses the 
waiver issue if appropriate (i.e., if the debt is still found to be valid).
Veterans Law Judge
Board of Veterans’ Appeals

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