Citation Nr: 0002575 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 97-26 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to waiver of recovery of an overpayment of improved death pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from April 1968 to January 1973. He died in June 1991. The appellant has been recognized as his surviving spouse. In May 1996, the Department of Veterans Affairs (VA) Regional Office, Cleveland, Ohio, terminated the appellant's award of improved death pension effective May 1, 1993, due to excess income. This action resulted in an overpayment in her account. In August 1996, the Regional Office Committee on Waivers and Compromises denied the appellant's request for a waiver of recovery of the indebtedness. She appealed from that decision. The overpayment was initially reported to be $16,835.60. Later, it was reduced to $13,217.15. In her substantive appeal in June 1977, the appellant in effect questioned the propriety of the creation of the overpayment. She asked that she be provided an audit of her account reflecting how the overpayment was created. In July 1997, she was provided an audit reflecting the amounts paid and the amounts due during the period of the overpayment together with the amount of the overpayment. The appellant made no further contentions regarding the creation of the overpayment. Accordingly, the Board concludes that the only issue on appeal is the question of entitlement to waiver of recovery of the indebtedness. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the regional office. 2. The appellant had been in receipt of improved death pension benefits as surviving spouse of the veteran for several years. As of 1993, her award was based on family income consisting of Social Security benefits for her daughter. 3. In May 1996, the regional office terminated the appellant's award of improved death pension effective in May 1993 due to excess family income, including income other than Social Security benefits. This action resulted in the overpayment in question. 4. There was not a significant degree of fault on the part of the appellant in creation of the overpayment. Recovery of the indebtedness would seriously impair the appellant's ability to meet necessary family living expenses. CONCLUSION OF LAW Recovery of the overpayment of improved death pension benefits would be against the principle of equity and good conscience. 38 U.S.C.A. §§ 5107, 5302 (West 1991); 38 C.F.R. § 1.965 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the appellant's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); effective on and after September 1, 1989. That is, the Board finds that she has presented a claim which is plausible. The Board is also satisfied that all relevant facts regarding the claim have been properly developed. In May 1996, the appellant's award of improved death pension was terminated effective in May 1993 due to excess family income including income other than the Social Security benefits of her daughter. This action resulted in the overpayment in question. The Regional Office Committee on Waivers and Compromises held that there had been no fraud, misrepresentation or bad faith on the part of the appellant in creation of the overpayment. That determination, being favorable to the appellant, has not been questioned. Since the matter is not in dispute, it is not an appellate issue which the Board can consider. Under the law, her request for a waiver of recovery of the indebtedness is therefore not barred on the basis of any of those factors. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.965. The Committee on Waivers and Compromises further held, however, that recovery of the indebtedness would not be against the principle of equity and good conscience. Accordingly, the appellant's request for waiver of recovery of the overpayment was denied. In determining whether recovery of an indebtedness from a claimant would be against equity and good conscience, the facts and circumstances in the particular case must be weighed carefully. Different factors will enter into such decision, such as the relative fault of the debtor, weighing such fault against any fault on the Government's part, whether there was any unjust enrichment, whether there would be undue financial hardship resulting from recovery of the overpayment, whether recovery of the overpayment would defeat the purpose of benefits otherwise authorized and whether the debtor relinquished a valuable right or changed position by reason of having relied upon the erroneous benefit. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.965. In this case, as indicated previously, in May 1996, the regional office terminated the appellant's award of improved death pension effective in May 1993 due to excessive family income including wages, unemployment benefits and the early withdrawal of pension benefits by the appellant as well as her daughter's Social Security benefits. The appellant had not previously reported the receipt of some of these items which are countable as income by the VA. There was some fault on the part of the appellant in creation of the overpayment by failing to promptly report the receipt of all of her income to the VA. The appellant had previously advised the VA that she was unable to write or understand English very well; furthermore, it is not apparent to the average person that the withdrawal of pension benefits, or unemployment benefits would be countable as income for VA purposes. Accordingly, it is plausible that there may have been some misunderstanding on her part as to the prompt and proper reporting of all income received by her to the VA. Accordingly, the Board concludes that there was not a high degree of fault on the part of the appellant in creation of the overpayment. On the financial status report submitted by the appellant in May 1997, she indicated that her only income consisted of her net salary of $798 whereas her monthly expenses were $987. During the years of the overpayment, her employment was intermittent and there were several dependents in the household. The only asset listed by her is a 1986 automobile. Thus, it appears that she has been living at essentially a poverty level for several years, and is not significantly above that level now. It is clear that recovery of this relatively large indebtedness would result in a financial hardship for her. After carefully considering the entire record in this case, the Board concludes that recovery of the overpayment of improved death pension benefits would be against the principle of equity and good conscience. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.965. Accordingly, under the circumstances, it follows that entitlement to waiver of recovery of the indebtedness is in order. In arriving at its decision in this regard, the Board has resolved all doubt in favor of the appellant. 38 U.S.C.A. § 5107. ORDER Entitlement to waiver of recovery of overpayment of improved death pension benefits is established. The appeal is granted. ROBERT D. PHILIPP Member, Board of Veterans' Appeals