BVA9501207 DOCKET NO. 93-07 328 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to waiver of recovery of an overpayment of improved death pension benefits, to include whether the overpayment was properly created. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran had active service from June 1969 to January 1971 and died in March 1973. This appeal arises from an August 1992 decision by the New Orleans, Louisiana, Committee on Waivers and Compromises denying waiver of recovery of an overpayment of improved death pension in the calculated amount of $4,286.82. REMAND The appellant was awarded improved death pension benefits effective March 1987, based on her reported income consisting of earnings. In March 1990, the appellant advised the Department of Veterans Affairs (VA) that she had broken and dislocated her ankle and was temporarily unable to work. In May 1990, the appellant reported that she was still under a doctor's care, that she had not worked since December 1989, and that she had received some income for 4 months. In a July 1990 award letter, the regional office advised the appellant of award actions including the award of improved monthly pension benefits of $377 effective June 1990, based on her report of no income as of May 1990. She was advised to immediately notify the VA of any changes in income. In May 1991, the VA notified the appellant that an improved pension eligibility verification report for the annual periods of March 1990 through March 1992, which had been sent to her in March 1991, had not been received. She was further advised that until the completed form was received and reviewed by the VA, she would receive no further pension payments. Documentation of record confirms that the appellant's VA pension payments were suspended as of May 1991. In December 1991, the appellant's pension award was retroactively terminated effective from March 1990 and she was advised of the resulting overpayment, calculated as $4,304.23. In March 1992 the appellant submitted an improved pension eligibility verification report which indicated earnings of $5, 851.74 for the period of March 1990 through February 1991 and earnings of $9,645.48 for the period of March 1991 through February 1992. No unreimbursed medical expenses were listed for either period. In an amended award action dated in April 1992, the regional office retroactively terminated the appellant's pension award effective from April 1990, based on a finding that she had income of $5,851. The overpayment was recalculated as $4,286.82. However, the appellant has stated that she did not obtain full- time employment until November 1990 and that she incurred unreimbursed medical expenses following the ankle fracture. She did not specify the amounts or dates of payment of such medical expenses. The provisions of 38 C.F.R. § 3.660(a)(2) provide that reduction or discontinuance of an award of improved pension required because of an increase in income shall be made effective the end of the month in which the increase occurred. In the instant case, the appellant has indicated that she had little income until November 1990 and had unreimbursed medical expenses following her ankle fracture. It is not clear from the record what, if any, income the appellant had from March 1990 to November 1990 or what, if any, unreimbursed medical expenses were paid during the overpayment period. Since the veteran's claim is well grounded, the VA has a duty to assist in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103 (1993). Accordingly, the case is remanded to the RO for the following: The RO should contact the appellant and have her provide a statement which details the income which she received in each individual month of the period from March 1990 through April 1991. The appellant should also provide a detailed statement of her medical expenses for the period of March 1990 through April 1991. After completion of the above development, the appellant's claim should be further reviewed. The regional office should make any necessary recalculation of countable income and determine the proper date for any adjustment of the appellant's award in conformity with 38 C.F.R. § 3.660(a)(2). The case should then be reviewed by the Committee on Waivers and Compromises. If the determination remains adverse, the case should be processed in accordance with appropriate appellate procedures, including a supplemental statement of the case, explaining all actions and income determinations made by the regional office. No action is required of the appellant until she receives further notice. The purpose of this remand is to procure clarifying data. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the appeal. JAMES R. ANTHONY Member, Board of Veterans' Appeals 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) (1993).