200608-90061

• Court: Board of Veterans' Appeals
• Decided: November 30, 2020
• Docket: 200608-90061
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 11/30/20 Archive Date: 11/30/20

DOCKET NO. 200608-90061 DATE: November 30, 2020

REMANDED

A waiver of the recovery of the overpayment of Department of Veterans Affairs (VA) improved death pension benefits in the amount of $9,309 is remanded.

REASONS FOR REMAND

This appeal comes to the Board of Veterans’ Appeals (Board) from a May 2020 decision of the Committee on Waivers and Compromises (Committee) of the Agency of Original Jurisdiction (AOJ). In May 2020, a timely appeal of this decision to the Board of Veterans’ Appeals (Board) was received and Direct Review by Veteran Law Judge was elected. See May 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). Ordinarily the Board can only consider the record as of the Committee decision. See 38 C.F.R. §§ 20.202 (b)(1), (c)(1), 20.301. However, the Board must remand cases where there is a pre-decisional duty to assist error or correction of any error by the AOJ, other than a duty to assist error, in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the Appellant’s claim. See 38 CFR § 20.802(a). Additionally, the standard of “no reasonable possibility” is not fulfilled under the “mere belief that the likelihood” of substantiating the claim is low. See Jones v. Wilkie, 918 F.3d 922, 926 (2019) (interpreting similar language from 38 U.S.C. § 5103A). The remand must specify the action to be taken by the AOJ.

In this case, the Committee decision refers to a financial status report that while incomplete, listed income, expenses, assets, and installment debts. The financial status report attached to the decision referral, however, is blank. An internal attempt was made to obtain to the financial report referred to by the Committee to no avail. Thus, it appears that it may no longer be available and that a duplicate or replacement should be obtained since there was pre-decisional error in not attaching this form.

The matters are REMANDED for the following action:

Obtain a copy of the financial status report which was referred to by the Committee in the May 2020 decision which included income, expenses, assets, and installment debts. If that form no longer exists or is otherwise unavailable, obtain a complete replacement.

K. MILLIKAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board Department of Veterans Affairs

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.