Citation Nr: 0007448 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-14 155A ) 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 $1,858.00. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active service from May 1943 to December 1945. In June 1997, the San Juan, Puerto Rico, Regional Office (RO) proposed to reduce the appellant's Department of Veterans Affairs (VA) improved death pension benefits retroactively from February 1, 1994 based upon her reported receipt of unearned income. In September 1997, the RO effectuated the proposed action. In September 1997, the appellant was informed in writing of the overpayment of VA improved death pension benefits in the amount of $1,858.00 and her waiver rights. In October 1997, the appellant submitted a notice of disagreement with the creation of the overpayment. In a February 6, 1998 written statement, the appellant conveyed that "I accept [overpayment] created." This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 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 $1,858.00. In February 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 $1,858.00. In March 1998, the appellant submitted a notice of disagreement with the creation of the overpayment. In August 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 $1,858.00. In September 1998, the appellant submitted a substantive appeal from the February 1998 Committee decision. The appellant has been represented throughout this appeal by Puerto Rico Public Advocate for Veterans Affairs. 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 appellant 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 $1,858.00 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 $1,858.00. 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. CLIFFORD R. OLSON Acting 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).