Citation Nr: AXXXXXXXX
Decision Date: 07/30/21 Archive Date: 07/30/21
DOCKET NO. 200123-56300
DATE: July 30, 2021
ORDER
The appeal for recoupment of the Veteran's separation pay in the amount of $46,699.95 is dismissed.
FINDING OF FACT
The Board lacks jurisdiction under the Appeals Modernization Act (AMA) to review the merits of the appeal for recoupment of separation pay in the amount of $46,699.95 at this time.
CONCLUSION OF LAW
The criteria for dismissal of the issue of recoupment of separation pay in the amount of $46,699.95 have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.104, 20.205.
REASONS AND BASES FOR FINDING AND CONCLUSION
Dismissal of Appeal
When the appeal of the issue of recoupment of the Veteran's separation pay in the amount of $46,699.95 came before the Board, it was inaccurately identified as an AMA appeal. The AMA, which became effective February 19, 2019, creates a new framework for appellants dissatisfied with VA's decision on their claim to seek review.
In this case, the Veteran has not filed a valid appeal to a Rapid Appeals Modernization Program (RAMP) rating decision or a rating decision with a notification letter dated on or after February 19, 2019, and there is no appeal of a Statement of the Case or Supplemental Statement of the Case on or after February 19, 2019; therefore, this case is not a valid AMA appeal.
Rather, in a January 2019 decision issued under the Legacy system, the AOJ proposed to begin recoupment of separation benefits paid to the Veteran by the military and explained that recoupment of the remaining $35,024.96 from a total of $46,699.95 after federal income tax was withheld would begin on February 1, 2019. In May 2019, the Veteran submitted a timely notice of disagreement (NOD).
In April 2020, the AOJ issued a statement of the case (SOC) denying additional adjustment of separation pay, which had been recouped at a rate of $1,062.27 a month. In May 2020, the Veteran filed a timely substantive appeal for the issue included on the April 2020 SOC, disagreeing with the recoupment of the separation pay.
Subsequently, in March 2021, the Veteran filed a VA Form 10182 Decision Review Request: Board Appeal (NOD) challenging the recoupment of separation pay and specifically identified the January 2019 decision (i.e., the notification received of the rating decision and intention to begin recoupment of separation pay) as the decision that he wanted to appeal. The question of whether recoupment of separation pay in the amount of $49,699.95 was proper is already being considered in the context of the legacy appeal, which was perfected in May 2020.
Because the Board lacks jurisdiction under the AMA to review the merits of the issue of whether recoupment of separation pay in the amount of $49,699.95 was proper, which is a question already to be considered as part of the appeal under the legacy system, the issue must be dismissed as moot, and the Veteran may continue to pursue the legacy appeal.
J. PARKER
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board C. Palmer, Counsel
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.