BVA9503898 DOCKET NO. 93-05 664 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to waiver of recovery of the overpayment of Department of Veterans Affairs (VA) improved pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from November 1953 to January 1961. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1992, decision of the Committee on Waivers and Compromises (Committee) of the Buffalo, New York, Regional Office (RO) of the VA. The notice of disagreement was received in November 1992. The statement of the case was sent to the veteran in December 1992. The substantive appeal was received in January 1993. In an October 1992 letter, the RO notified the veteran that VA pension benefits would not be reestablished as he was precluded from receiving VA pension benefits due to his household's excessive income. In March 1993, a VA Form 1-646, Statement of Accredited Representation in Appealed case, was received from the veteran's representative. In that statement, the representative indicated that the veteran was in disagreement with all denials of benefits to which he may be entitled. The Board accepts that statement as a notice of disagreement as to the issue of whether the veteran is precluded from receiving improved pension benefits due to excessive income. Therefore, the Board finds that the RO should furnish the veteran with a statement of the case as to that issue in accordance with 38 U.S.C.A. § 7105 (West 1991) and 38 C.F.R. §§ 19.29, 19.30, (1993). REMAND In his notice of disagreement and substantive appeal, the veteran indicated that he disputes the debt which is the subject of the overpayment at issue in this case. The overpayment was created when the veteran continued to receive benefits after his income became excessive and exceeded the maximum annual rate. In June 1991, the veteran married and his income combined with his spouse's income exceeded the maximum annual rate. However, it was determined that the veteran did not notify the VA in a timely manner regarding his marriage and change in income since the first notification of such was received in an Improved Pension Eligibility Verification Report in March 1992. The veteran maintains that he notified the VA RO in Buffalo, New York, in June 1991 of his marriage, but that RO denies receiving his notification. Therefore, he alleges that the overpayment was created solely due to VA error. The United States Court of Veterans Appeals has clearly stated when a debtor requests a waiver and also asserts that the underlying debt is invalid, VA must resolve both matters. Schaper v. Derwinski, 1 Vet.App. 430 (1991). Based on the veteran's statements, the Board has determined that the veteran has raised the issue of whether the overpayment in this case was properly created. Furthermore, the Board has also determined that the creation issue is inextricably intertwined with the issue of waiver of the recovery of the overpayment, currently certified for appellate review. Thus, the issue of the proper creation of the overpayment of compensation benefits should be adjudicated by the RO prior to return of the case to the Board. Harris v. Derwinski, 1 Vet.App. 180 (1991). Additionally, the Board notes that the veteran has incurred unreimbursed medical expenses in the past and, in addition, it is unclear whether his spouse is currently unemployed and receiving unemployment benefits or is employed. Therefore, the Board finds that the veteran and his spouse should be asked to complete a current financial status report. Under the circumstances of this case, additional development is necessary in order to fulfill the VA's duty to assist. Accordingly, this matter is REMANDED for the following action: 1. The RO should develop and adjudicate the issue of whether the creation of the overpayment of VA compensation benefits was proper. The period covered for the overpayment, i.e., beginning and ending dates, the amount, and the reason for the creation of the overpayment must be set forth separately in the determination. The RO should also address the issue of sole VA error in the creation of the overpayment. If that claim is not resolved to his satisfaction, the veteran and his representative should so be advised. If the veteran files a timely notice of disagreement, he and his representative should be provided with a statement of the case as required by 38 U.S.C.A. § 7105(d) (West 1991) as to this issue. 2. The RO should contact the veteran and request a completed and current Financial Status Report. 3. If the issue of whether the creation of the overpayment of VA compensation benefits was proper is not resolved in the veteran's favor, the Committee should again formally consider the veteran's claim of entitlement to a waiver of the recovery of an overpayment of VA compensation benefits. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. No action is required of the veteran until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case pending completion of the requested development. EUGENE A. O'NEILL Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).