Citation Nr: 0002860 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 94-01 953A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to waiver of recovery of an overpayment of Section 306 pension benefits in the amount of $1,696. ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran had active service from May 1918 to June 1919. The veteran died in August 1973, and the appellant is his widow. This appeal arises from a February 1993 decision of the Committee on Waivers and Compromises of the New York, New York RO, which denied the appellant's request for waiver of recovery of an overpayment of Section 306 pension benefits in the amount of $1,696 on the basis that recovery would not be against equity and good conscience. REMAND VA has a duty to assist the appellant in the development of facts pertaining to her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The United States Court of Appeals for Veterans Claims has stated that the Board must make a determination as to the adequacy of the record. Littke v. Derwinski, 1 Vet. App. 90 (1990). In this case, an overpayment in the amount of $1,696 was created as the result of a retroactive termination of the appellant's pension award. By letter in July 1992, the RO notified the appellant of a proposal to terminate her pension benefits on the basis of her report of receiving unearned income of $7,349 in 1989. By letter in September 1992, the RO notified the appellant that her benefits were terminated effective January 1, 1990, on the basis of the additional annual income in 1989. Evidently, the appellant's benefits were terminated because her 1989 income exceeded the maximum allowable annual limit set by regulation. In denying the appellant's request for waiver of recovery of the debt in February 1993, the RO's Committee on Waivers indicated that it had received VA Form 20-0159 from the appellant in September 1991 in which she confirmed receipt of the additional 1989 income. Although the appellant did not appear to contest the additional 1989 income in her substantive appeal received in February 1994, a review of the claims folder shows that her income confirmation in September 1991 is not of record. The RO should associate with the claims folder the missing documentation referenced by the RO. Moreover, the Board notes that the statement of the case (SOC) provided to the appellant did not contain the applicable law and regulations, particularly 38 U.S.C.A. § 5302 and 38 C.F.R. § 1.965, and a discussion of how each of the elements of the equity and good conscience standard affected the RO's decision. According to 38 C.F.R. § 19.29, a SOC must be complete enough to allow the appellant to present written and/or oral arguments before the Board. It must contain a summary of the applicable laws and regulations, with appropriate citations, a discussion of how such laws and regulations affect the determination, and the determination and reasons for the determination of the agency of original jurisdiction with respect to which disagreement has been expressed. In the present case, it is evident that the SOC is inadequate, as the RO failed to set forth the applicable laws and regulations and to discuss how each element of the equity and good conscience standard affected its determination. Finally, the record shows that the appellant most recently submitted a financial status report in 1993. It would be useful to obtain a current financial status report to determine how the appellant's circumstances have changed since 1993. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should associate with the claims folder a photocopy of the particular page of the document received by the RO in September 1991, in which she verified her 1989 income. 2. The RO should request that the appellant provide a current financial status report listing all monthly income, monthly expenses, and assets. Once obtained, all documentation should be associated with the claims folder. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that the foregoing development has been completed. If any development is incomplete, appropriate corrective action should be implemented. Thereafter, the RO should readjudicate the appellant's claim. If the decision remains adverse to the appellant, the RO should provide her with a supplemental statement of the case (SSOC). The SSOC should provide the pertinent laws and regulations, to include 38 U.S.C.A. § 5302 and 38 C.F.R. § 1.965, and a discussion of how each of the elements in the equity and good conscience standard affected the RO's determination. The appellant should be given the applicable time to respond to the SSOC. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C. W. SYMANSKI Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).