Citation Nr: 0001248 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-21 182 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Whether the claim for waiver of recovery of an overpayment of death pension benefits was timely filed. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from October 1940 to October 1943. The appellant is the widow of the veteran, who died in January 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1995 administrative decision by the Committee on Waivers and Compromises (Committee) at the VA Debt Management Center (DMC) in Fort Snelling, Minnesota. The Committee determined that the appellant had not filed a timely request for waiver of recovery of an overpayment of nonservice-connected death pension benefits in the calculated amount of $2,664. Information on file shows that, during the pendency of this appeal, the Newark, New Jersey, Regional Office (RO) had recovered the appellant's total indebtedness. REMAND The threshold question to be answered in this case is whether the appellant has submitted a timely request for waiver of recovery of an overpayment of disability compensation benefits in the amount of $2,664. The appellant contends that, due to her blindness, she has been physically unable to respond to VA correspondence in a timely way and is, thus, entitled to the benefit requested. Under the applicable criteria, a request for waiver of an indebtedness under this section shall only be considered: (1) If it is made within two years following the date of a notice of indebtedness issued on or before March 31, 1983, by the VA to the debtor, or, (2) except as otherwise provided herein, if it is made within 180 days following the date of a notice of indebtedness issued on or after April 1st, 1983, by the VA to the debtor. The 180-day period may be extended if the individual requesting waiver demonstrates to the chairperson of the Committee on Waivers and Compromises that, as the result of an 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 (including forwarding). If the requester does not substantiate that there was such a delay in the receipt of the notice of indebtedness, the chairperson shall direct the 180-day period be computed from the date of the requested actual receipt of the notice of indebtedness. 38 U.S.C.A. § 5302(a) (West 1991); 38 C.F.R. § 1.963(b) (1999). In July 1995, the DMC denied the appellant's request for a waiver of recovery of the overpayment on the basis of an untimely waiver request. This determination was based on a notification letter allegedly sent from the DMC in August 1987 to the appellant informing her of the overpayment in her account. However, this letter is not of record. Therefore, the Board is unable to ascertain from the current record before it whether the appellant was properly notified of the amount of her overpayment and her right to request a waiver of recovery of the overpayment. The Board further observes that the statement of the case provided to the appellant by the RO in October 1995 failed to cite the pertinent regulatory provisions controlling this case, 38 C.F.R. § 1.963(b) or furnish her with a discussion of its application to the determination that her waiver request was untimely filed. The appellant, as a result, was not advised that the 180-day period for requesting a waiver could be extended by a showing of error by VA or postal authorities or circumstances beyond her control that resulted in a delay of her notice of indebtedness. The appellant should be provided an opportunity to present such argument. On the basis of the above, the Board is REMANDING this case to the RO for the following actions: 1. The RO should take appropriate steps in order to obtain a copy of the August 1987 notification letter from the DMC and associate it with the claims folder. If a copy of this letter cannot be obtained, the RO should obtain a written statement from the DMC regarding the regular administrative practice in August 1987 with respect to notifying debtors as to their right to request waiver of an overpayment (including the manner of determining the correct address) and the applicable time limits for doing so. 2. Then, the RO should undertake to review the appellant's claim. All indicated development should be undertaken in this regard. The RO should then prepare a supplemental statement of the case, which provides the appellant the substantive provisions of 38 C.F.R. § 1.963(b) as noted hereinabove and a discussion of their applicability to her claim for waiver of her assessed indebtedness. The RO should then afford the appellant and her representative a reasonable period of time within which to respond to such a supplemental statement of the case. Thereafter, if the benefit sought remains denied, the case should then be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain additional evidence and ensure that the appellant is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required of the appellant until contacted by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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).