Citation Nr: 0002877 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-09 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether a claim seeking waiver of overpayment of death pension in the amount of $4,686 was timely filed. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD C. Eckart, Associate Counsel INTRODUCTION The appellant is the surviving spouse of the veteran who had active military service from July 1940 to September 1945. He died in March 1976. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 1997 decision of the Committee on Waivers and Compromises (the Committee) of the Buffalo, New York, Department of Veterans Affairs (VA) Regional Office (RO). REMAND An overpayment of death pension benefits in the amount of $4,686 was created in August 1994, effective February 1, 1993. Of record is an award action letter from the RO dated August 29, 1994, which indicated that an overpayment would result based on information received from the Social Security Administration confirming receipt of both monthly and retroactive Social Security benefits in January 1993. This award action letter did not reflect the amount of overpayment, but advised that the RO would shortly notify the appellant of the exact amount of the overpayment and give additional information about the overpayment. By letter dated April 30, 1997, the RO responded to an inquiry about an overpayment which informed the appellant that she was overpaid death pension benefits in the amount of $4,686. The appellant filed a request for waiver of the overpayment in July 1997 which was denied by decision of the Committee in July 1997 on the basis that her request was not timely filed pursuant to 38 C.F.R. § 1.963(b)(2) (1999). The Committee determined that the request was made in excess of 180 days after notice of the overpayment was sent on September 10, 1994 which informed her of the overpayment in question and her rights with respect to requesting a waiver of the resulting debt. The Board further notes that the statement of the case issued in November 1997 indicates that the notice of the assessed overpayment from Debt Management Center (DMC) was dated "09/10/94." However, a copy of the actual notice letter is not of record. Finally, the Board observes that there is of record a representative statement dated on April 2, 1997, which expresses disagreement with a letter sent from the DMC dated March 7, 1997, regarding a delinquent debt, the validity of which was asserted to be in dispute and stated "at this time we are requesting that this concern be considered to be in dispute." In the Board's view, it may be reasonable to construe this statement as intending to express dissatisfaction with the DMC's March 7, 1997 decision which, under 38 C.F.R. § 20.201 (1999), may be sufficient to constitute a timely filed notice of disagreement as to the issue of proper creation/amount of the charged indebtedness. However, a copy of the March 7, 1997 letter in dispute is not associated with the claims file. Without this March 7, 1997 letter associated with the file, it is not possible to determine whether it is a valid decision subject to appeal. If the March 1997 letter is located and shown to a valid decision, regarding which the appellant has filed a timely NOD through her representative, the RO has not issued a statement of the case on this issue. The Court has directed that where a claimant has submitted a timely notice of disagreement with an adverse decision and the RO did not subsequently issue 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. See Manlincon v. West, 12 Vet. App. 238 (1999). To ensure that VA has met its duty to assist the claimant in developing facts pertinent to her appeal, and to ensure full compliance with due process requirements, this case is REMANDED to the RO for the following actions: 1. The RO should obtain a copy of any letter from the DMC (or the RO), advising the appellant of the amount of her overpayment and her right to request a waiver, and associate it with the claims folder. Of particular importance is the letter from the DMC dated September 10, 1994. 2. If a copy of the letter cannot be obtained, the RO should obtain a written statement from the DMC regarding the letter sent to the appellant informing her of the overpayment in question and her rights with respect to requesting a waiver of the resulting debt. To this end, the date the letter was sent to the appellant should be clearly set forth in the written statement. This document should be added to the claims folder. 3. A copy of the March 7, 1997 letter from the DMC should also be obtained by the RO and associated with the claims folder. If a copy of this letter cannot be obtained, this should be noted in writing and added to the claims folder. If this letter is located and is shown to be a decision regarding issues pertaining to the proper creation/amount of debt, which have been contested in the April 2, 1997 representative's statement, the RO should issue a statement of the case to the appellant and her representative addressing these issues. If the decision on the proper creation/amount of the debt remains adverse to the appellant and, after the appellant has been given the opportunity to respond thereto, the claims file should be returned to the Board for further appellate decision, if in order. However, this issue should not be certified to the Board unless all applicable appellate procedures are followed, including the completion of the appeal. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given an appropriate opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until she is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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. A. BRYANT Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).