Citation Nr: 0007295	
Decision Date: 03/17/00    Archive Date: 03/23/00

DOCKET NO.  98-08 247 A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUE

Entitlement to waiver of recovery of an overpayment of 
Department of Veterans Affairs (VA) disability compensation 
benefits in the amount of $14,271.15.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. L. Mason, Associate Counsel



INTRODUCTION

The veteran served on active duty from December 1952 to 
September 1954.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a September 1997 decision of the Committee on 
Waivers and Compromises (Committee) of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, 
North Carolina.  

That decision denied waiver of the recovery of overpayment in 
the amount of $18,533.15.  

Thereafter, the RO, in a December 1997 accounting, reported 
that the veteran was entitled to additional payment for a 
dependent beginning in December 1993 and reduced the amount 
of the overpayment to $14,271.15.     


REMAND

The veteran asserts on appeal that he notified the VA in 1969 
of his divorce from his first wife and that there was 
administrative error on the part of the VA.  He further 
requested waiver of the overpayment on the basis that he was 
not at fault and due to financial hardship.  The veteran has 
clearly raised the issue of the propriety of creation of the 
overpayment.  A debtor may dispute the amount or existence of 
a debt, which is a right that may be exercised separately 
from a request for waiver or at the same time.  See 38 C.F.R. 
§ 1.911(c)(1) (1999).  While the veteran has disputed the 
creation of the overpayment on several occasions, the RO has 
not addressed this issue.   

The United States Court of Veterans Appeals (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 question of whether 
the overpayment at issue was properly created is inextricably 
intertwined with the issue pertaining to the veteran's 
entitlement to waiver of the recovery of the overpayment of 
disability compensation benefits.  This is because a grant or 
denial of a waiver presupposes the propriety of the creation 
of the indebtedness in the first instance.  See Parker v. 
Brown, 7 Vet. App. 116 (1994); Babchak v. Principi, 3 Vet. 
App. 466 (1992); Harris v. Derwinski, 1 Vet. App. 180 (1991).  
The fact that an issue is inextricably intertwined does not 
establish that the Board has jurisdiction of the issue, only 
that the Board cannot fairly proceed while there are 
outstanding matters that must be addressed.  Accordingly, 
this case is REMANDED to the RO for the following:

The RO should adjudicate the veteran's 
claim concerning the propriety of the 
creation of the overpayment, undertaking 
such development as is necessary in order 
to adjudicate the issue and address the 
specific contentions.  If the 
determination is adverse to the veteran, 
the RO should notify him and his 
representative of the determination and 
of his appellate rights, and inform him 
that he must perfect an appeal of this 
issue if he wants the Board to consider 
it in conjunction with the current 
appeal, and notify him of the time limit 
within which he must do so.  See 38 
C.F.R. §§ 20.200, 20.202, and 20.302(b) 
(1999). 

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.



		
	CLIFFORD R. OLSON
	Acting 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).