Citation Nr: 0005625 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 95-23 517 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Whether a request for waiver of recovery of an overpayment of improved disability pension benefits was timely filed. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran had active service from July 1943 to May 1946. This appeal arises from a November 1994 decision of the Committee on Waivers and Compromises (Committee) of the Huntington, West Virginia RO, which denied the veteran's request for waiver of recovery of an overpayment of improved disability pension benefits on the basis that the request was not filed in a timely manner. This case was before the Board in May 1997 when it was remanded for additional development. REMAND As noted above, the November 1994 Committee decision denied the appellant's request for waiver of recovery of an overpayment of improved disability pension benefits on the basis that the request was not filed in a timely manner. Under 38 C.F.R. § 1.963(b), a request for waiver of an indebtedness shall only be considered if it is made within 180 days following the date of a notice of indebtedness issued on or after April 1, 1983, by the VA to the debtor. In the May 1997 Remand, the Board noted that the evidentiary record discloses that claims folder does not contain copies of the notices to the appellant for the overpayments of pension benefits at issue. A handwritten document in the claims file shows that the first overpayment was $8,800 and the letter was sent January 26, 1992 and the second overpayment was $521 and the letter was sent July 27, 1992. The Board pointed out, however, that copies of these notices of indebtedness (including notice of the right to ask for a waiver within 180 days of notification of indebtedness) were not of record. As such, there was no proof that the appellant was actually informed of the 180 day time limit for the submission of a waiver request. Therefore, the Board remanded this matter and requested, in pertinent part, that the RO secure copies of any documents, including VA letters, which might have been sent to the veteran from the St. Paul, Minnesota, Debt Management Center (DMC) or the RO regarding the overpayments at issue in 1992. The evidence received subsequent to the Board Remand includes: a June 1997 Report of Contact wherein it was reported that the DMC did not keep any copies of the notices of indebtedness sent to the appellant; a computer print out of the dates that letters were sent to the appellant, which indicates that a code "101" letter was sent to the appellant on January 26, 1992; and a June 1997 Report of Contact wherein it was reported that a 101 letter is the first notice of overpayment letter. Further documentation of what the 101 letter states (most importantly, whether this letter notifies an appellant of his or her right to request waiver, and of the 180 day time limit for filing an application for waiver) was not indicated. In this case, the appellant has been charged with knowledge of the 180-day time limit for requesting waiver, essentially based on his receipt of the Code 101 letter. While the Board finds that the evidence of record sufficiently demonstrates that the appellant was sent a Code 101 letter on January 26, 1992, the record still does not establish that he was informed, at that time, of his right to request waiver and the 180 day time limit for filing an application for waiver. The Board understands that a copy of the exact (Code 101) letter sent the appellant may not be available but a copy of the letter as it existed in January 1992 (a "generic" copy) should be associated with the record. In view of the foregoing, the case is again being remanded for the following action: 1. The RO should contact the RO and the DMC in St. Paul, Minnesota and request a copy of the Code 101 letter as it existed in January 1992. This "generic" copy should be associated with the record. 2. Thereafter, the RO should readjudicate the claim and, if the decision remains adverse to the appellant, provide him and his representative with a supplemental statement of the case. They should be afforded the applicable time to respond. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter 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. C. W. SYMANSKI 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).