Citation Nr: 0004304 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-19 784A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs improved death pension benefits in the amount of $6,078.00. REPRESENTATION Appellant represented by: Public Advocate for Veterans Affairs, Puerto Rico ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel IINTRODUCTION The veteran had active service from November 1950 to February 1960. In May 1991, the San Juan, Puerto Rico, Regional Office (RO) awarded Department of Veterans Affairs (VA) improved death pension benefits to the appellant. In February 1994, the RO proposed to terminate payment of the appellant's VA improved death pension benefits retroactively from May 1, 1991 based upon her reported receipt of earned income. In March 1994, the RO effectuated the proposed action. In June 1994, the appellant requested that the RO "cancel [her] waiver claim." In July 1994, the RO resumed payment of VA improved death pension benefits to the appellant based upon her reported receipt of no countable income. The appellant was informed in writing of her duty to promptly report any changes in her family's income. In August 1994, the appellant was informed in writing of the overpayment of VA improved death pension benefits in the amount of $14,150.00 and her waiver rights. In October 1994, the appellant executed an "Agreement to Pay Indebtedness" in which she acknowledged her indebtedness to the VA in the amount of $14,150.00 and agreed a repayment plan. In August 1997, the RO informed the appellant that it had not received a repayment plan from her concerning the remaining $10,514.00 balance which she owed. In an August 1997 written statement, the appellant stated that she "hereby disagree[d] with this [overpayment]." In October 1997, the RO terminated payment of the appellant's VA improved death pension benefits retroactively from June 1, 1996 based upon her receipt of Social Security Administration (SSA) benefits. The RO informed the appellant that the adjustment "results in an overpayment of benefits" to her. The appellant was told that she would be "notified shortly of the exact amount of the overpayment." In October 1997, the RO informed the appellant in writing "that the amount of [her] existing debt has increased by $6,078.00 " and "the balance of [her] debt is now $16,592.00." The appellant was informed of her waiver rights. In November 1997, the appellant submitted a notice of disagreement with creation of the stated overpayment. In January 1998, the appellant requested a waiver of recovery of the "remaining [overpayment]" of VA improved death pension benefits. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1998 decision of the RO's Committee on Waivers and Compromises (Committee) which denied the appellant's request for waiver of recovery of the overpayment of VA improved death pension benefits in the amount of $20,228.00. In July 1998, the appellant submitted a notice of disagreement with the denial of waiver of recovery of the overpayment of VA improved death pension benefits in the amount of $20,228.00. In December 1998, the RO issued a statement of the case to the appellant and her accredited representative which addressed solely the issue of waiver of recovery of the overpayment of VA improved death pension benefits in the amount of $20,228.00. In December 1998, the appellant submitted a substantive appeal from the July 1998 Committee decision. In November 1999, the RO issued a supplement statement of the case to the appellant which addressed solely the issue of waiver of recovery of the overpayment of VA improved death pension benefits in the amount of $20,228.00. The appellant has been represented throughout this appeal by Puerto Rico Public Advocate for Veterans Affairs. The Board observes that the appellant withdrew her timely request for waiver of overpayment of VA improved death pension benefits in the amount of $14,150.00. The appellant's August 1997 and January 1998 written statements were received several years after the August 1994 notification of the overpayment of VA improved pension benefits in the amount of $14,150.00 and thus may not be construed as timely requests for waiver of that overpayment. In the absence of a timely request for waiver of recovery of an overpayment of VA improved pension benefits in the amount of $14,150.00, the issue is not before the Board and will not be addressed below. REMAND The appellant advances on appeal that the alleged overpayment of VA improved death pension benefits was not properly created and any valid debt should be waived. The United States Court of Appeals for Veterans Claims (Court) has directed that when a debtor requests a waiver of an overpayment and also asserts that the underlying debt is invalid, the VA must resolve both matters. Schaper v. Derwinski, 1 Vet. App. 430 (1991). The veteran has submitted a timely notice of disagreement with the creation of the overpayment at issue. The RO has not issued a statement of the case or supplement statement of the case which addresses that issue. The Court has directed that where an appellant has submitted a timely notice of disagreement with an adverse decision and the RO has not subsequently issued a statement of the case addressing the issue, the Board should remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, this case is REMANDED for the following action: 1. The RO should issue a statement of the case to the appellant and her accredited representative which contains a full and complete discussion of whether the overpayment of VA improved death pension benefits in the amount of $6,078.00 was properly created and all applicable laws and regulations. Specifically, the statement of the case should include a discussion of the events which led to the creation of the overpayment and an explanation of the amount of the indebtedness assessed against the appellant. The appellant is informed that if she continues to challenge the creation of the debt, she must submit a timely substantive appeal as to that issue. 2. The Committee should then readjudicate the appellant's entitlement to waiver of recovery of an overpayment of VA death improved pension benefits in the amount of $6,078.00. In particular, was the debt of $6,078.00 adjusted based on the claim of medical expenses? If the debt was adjusted, the amount of the adjustment must be established. The appellant is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant's claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See the Veterans' Benefits Improvement Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) and 38 U.S.C.A. § 5101 (West 1991 and Supp. 1998) (Historical and Statutory Notes). In addition, the Veterans Benefits Administration's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the RO is to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV. Paras. 8.44-8.45 and 38.02-38.03. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration if appropriate. The purpose of this REMAND is to allow for due process of law. No inference should be drawn from it regarding the final disposition of the appellant's claim. H. N. SCHWARTZ Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), 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) (1999).