BVA9500167 
DOCKET NO.  93-07 944     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa

THE ISSUE

Entitlement to waiver of recovery of an overpayment of improved
disability pension benefits.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the
United States

ATTORNEY FOR THE BOARD

Hilary L. Goodman, Counsel

REMAND

The veteran had active service from August 1942 to December 1945.
This appeal arises from a decision of September 1992 by the
Committee on Waivers and Compromises (Committee) located in the
Des Moines, Iowa, Regional Office.  The overpayment charged is in
the amount of $22,689.  The period of overpayment is from
February 1989 through mid-1992.

Records reflect that in the September 1992 decision, the
Committee found that the creation of the debt was a direct result
of intentional misrepresentation on the part of the veteran and
waiver of recovery of the overpayment was therefore denied.  The
veteran was informed that this was the basis for the denial.
However, the statement of the case issued to the veteran, did not
discuss the standards of misrepresentation, or cite the
appropriate laws and regulations.  Although a finding of
misrepresentation precludes a waiver, 38 C.F.R. §§ 1.962, 1.965,
the statement of the case only cited the elements of equity and
good conscience and it was concluded that waiver of recovery of
the overpayment must be denied as the veteran's fault outweighed
financial hardship.  The appellant has responded to the equity
and good conscience argument and not had an opportunity to deal
with the misrepresentation determination.  This is a clear
violation of due process.

The veteran's representative has requested that the veteran's
complete medical records be obtained, contending that the
veteran, due to a deteriorated state of mind and extremely poor
physical condition, had absolutely no control over the
circumstances leading to the overpayment.  In letters of April
and June 1992 an attorney who had declared he was representing
the appellant questioned the period and amount of the
overpayment.  A clear explanation and justification of the
overpayment period and amount is not of record.  When the
creation of the indebtedness is questioned, it must be
adjudicated before a waiver can be considered.  Smith v.
Derwinski, 1 Vet.App. 267 (1991); Schaper v. Derwinski,
1 Vet.App. 430 (1991).

The Board of Veterans' Appeals (Board) finds that a determination
on the question of waiver must be deferred until further records
are obtained and the inconsistent bases for the denial of the
veteran's claim have been clarified.  Accordingly, the claim is
REMANDED to the originating agency for the following action:

1.  The regional office should request from
the veteran, through his representative,
written authorization for the release of
his private medical records.  The regional
office should request the veteran's private
medical records as well as his medical
records from the Department of Veterans
Affairs Medical Center, Des Moines.  All
documents obtained should be associated
with the veteran's claims file.

2.  The RO should prepare a complete paid
and due audit for the entire period of the
overpayment.  The veteran should be sent a
copy of the audit and a full explanation of
the calculations relied upon to determine
the amount and period of the overpayment.

3.  Upon completion of the above, the
matter should be referred back to the
Committee for further consideration.  If
the Committee decision remains adverse to
the veteran, the Committee should provide
both the veteran and his representative
with a supplemental statement of the case
which includes a summary of the Committee's
reasons for its decision as well as all
additional appropriate laws and
regulations.

After the veteran and his representative have been given the
appropriate period of time in which to respond, the appeal should
be returned to the Board for further appellate consideration, if
otherwise in order.  The purpose of this REMAND is to ensure due
process.  No action is required by the veteran until he receives
further notice.

          ROBERT D. PHILIPP
          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).