BVA9502741 DOCKET NO. 93-10 164 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to waiver of recovery of an overpayment of improved pension benefits in the calculated amount of $4,255, to include the question of whether the overpayment was properly created. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Darryl A. Joe, Associate Counsel INTRODUCTION The veteran, who died in February 1988, had active military service from April 1946 to February 1948, and from January 1951 to September 1953. The appellant is his widow. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a September 1992 determination by the Committee on Waivers and Compromises (hereinafter Committee) of the San Diego, California Regional Office (hereinafter RO) of the Department of Veterans Affairs (hereinafter VA), which denied the appellant's request for waiver of recovery of an overpayment of improved death pension benefits. The determination was based on the finding that the appellant misrepresented her earned income, and, therefore, waiver of the assessed overpayment was precluded by law. REMAND As a threshold matter, the Board acknowledges that this matter was originally certified for appellate consideration of the issue of entitlement to waiver of recovery of improved death pension benefits in the calculated amount of $4,255. However, for reasons elaborated below, we find that the issue of proper creation of the overpayment amount at issue has also been raised. We find that the question involving the creation of the overpayment in this case is inextricably intertwined with the issue certified for appellate review, and therefore must be resolved with that issue. The record reflects that the overpayment in this case, calculated by the RO to be $4,255, resulted from the retroactive adjustment of the appellant's improved death pension award, after the RO learned that the appellant failed to report, in a timely fashion, wages from income earned by her during calendar year 1988. The record further reflects that the RO wrote to the appellant in June 1991, advising her that a study conducted by the VA revealed that she earned $4,552 in wages during 1988. In that letter, the RO also informed the appellant of its intention to adjust her pension award, effective July 1, 1988, because the 1988 wages were not properly reported. The record also demonstrates that, by letter dated in September 1991, the RO advised the appellant of the termination of her death pension award, effective July 1, 1988. Responding to inquiries made by the appellant, the RO, in correspondence dated in July 1992, advised her that the overpayment amount covered the period July 1988 to December 1988. Thereafter, in her request for waiver of recovery of the overpayment, received in August 1992, the appellant expressed confusion as to how the indebtedness of $4,255 was created, and how the amount was calculated. We observe that the September 1992 Committee decision did not specifically address the appellant's query regarding the creation of the overpayment and the Statement of the Case does not contain an adequate recitation of the facts leading to the creation of the indebtedness. The Board acknowledges that the RO compiled audit information in March and August 1991, reflecting an overpayment in the amount of $4,255, covering the period July 1, 1988 through June 30, 1989. However, we find no indication that this information was furnished to the appellant. The Board believes that the RO should provide the appellant with this clarifying information since she is clearly entitled to information showing the computation of the overpayment for which she is being held responsible, and our review of the record reveals that she has not been provided with a clear explanation of how the assessed overpayment was calculated by the RO. As a consequence of the foregoing facts, we conclude that the issue of entitlement to waiver of recovery of an overpayment of improved death pension benefits, to include the question of whether the overpayment was properly created, has not been properly prepared for appellate review. The VA has a duty to assist the appellant in the development of facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159(a) (1993). Accordingly, in order to clarify the record and afford due process of law, the case is REMANDED for the following actions: 1. The RO should furnish a paid and due audit to the appellant and accredited representative, covering the overpayment at issue, calculated as $4,255. 2. In view of her assertion that she reported wage income to the VA in a timely fashion, the appellant should be asked specifically when she first reported to the VA her 1988 and early 1989 wages, and, if possible, to submit documentation of same. 3. The Committee on Waivers and Compromises should then reevaluate the appellant's claim, following careful review of the facts of the record. 4. In the event waiver of recovery of the overpayment continues to be denied, the appellant and representative should be furnished a Supplemental Statement of the Case, which contains a full and complete discussion of all pertinent evidence and a citation to all relevant laws and regulations. The Supplemental Statement of the Case should specifically include a specific summary of the events which led to the creation of the overpayment at issue, and should explain the amount and the period of that overpayment. The question of whether the overpayment was properly created should be fully addressed, and the RO should provide a complete citation to all applicable laws and regulations governing this issue. Thereafter, the case should be returned to the Board for further appellate consideration, if in order, following appropriate appellate procedure. By its REMAND, the Board intimates no opinion as to the ultimate determination warranted on the issue on appeal. N. R. ROBIN 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).