BVA9503379 DOCKET NO. 93-05 278 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Recovery of the loan guaranty indebtedness. REPRESENTATION Appellant represented by: West Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael A. Pappas, Associate Counsel INTRODUCTION The appellant was separated from active duty in February 1971, following over 1 year and 10 months of active service. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office's Committee on Waivers and Compromises (RO). A January 1992 decision on waiver of indebtedness by the RO denied the appellant's request for a waiver his loan guaranty indebtedness, plus accrued interest. The appeal was received and docketed at the Board in August 1992. The appellant has been represented throughout his appeal by West Virginia Department of Veterans Affairs. REMAND One of the appellant's primary contentions is that the collection of the loan guaranty indebtedness by the VA would create an undue hardship to his family. The most recent financial information provided by the appellant was dated in July 1991, and as such, is now almost four years old. The appellant's spouse was not working at the time of that statement, although she had been gainfully employed outside the home in the past. Information concerning her current employment status would be helpful. In addition, one of the individuals previously reported as a minor dependent has now reached the age of majority. Finally, the Board takes cognizance of the fact that the decision of the RO to deny a waiver properly analyzed the appellant's finances and noted that the appellant was behind in all of his debts. It was projected by the RO, however, that the appellant would pay off at least one of his debts within 10 months and then presumably be in a better financial position to pay off his loan guaranty indebtedness. With respect to the relevance and necessity for the requirement that the appellant provide verification of his current financial status, including information pertaining to his spouse and any other adult family member living in his immediate household, it is important to remember that in an evaluation of whether "equity and good conscience" necessitates a favorable waiver decision, although not exhaustive, there must be considered all of the specifically enumerated elements found in 38 C.F.R. § 1.965(a) (1994). A fundamental area of consideration contained within the specifically enumerated elements is whether there would be imposed an undue hardship of collection upon the veteran-appellant. The proper analysis of "undue hardship" should take into consideration not only the appellant's current financial picture, but also a realistic projection of his status in the foreseeable future. Further, to the extent that the appellant's spouse, or any adult family members residing in the appellant's household, share financial resources with the appellant for the purpose of funding the basic necessities of life, or are able to contribute to the payment of any family expenses including the appellant's debt obligations, their financial information is relevant. Finally, there appears to be some discrepancies with respect to the financial information provided thus far by the appellant, particularly with respect to his gross, versus net, income. VA has a duty to assist a veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The appellant's financial information and the verification of that information are crucial to that issue. As such, VA's duty to assist a veteran includes a reasonable effort to obtain that information. However, "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet.App. 190 (1991). Secondly, it is a basic principle of veterans' law that the Board shall decide an appeal only after affording the claimant an opportunity for a hearing. 38 U.S.C.A. § 7104 (West 1991). It appears that the appellant had originally requested such a hearing in conjunction with the filing of his substantive appeal, but subsequently withdrew his request. Unfortunately, the document in which he was purported to have withdrawn his request was neither dated nor signed. A clarification of the appellant's intentions with respect to a hearing would be consistent with fundamental law. Finally, the Board notes that the appellant's loan guaranty indebtedness was originally determined in November 1989 to be $11,962.06. Following the resale of the subject property by the VA it was recalculated to be $9,823.06. In the initial decision on waiver, the RO indicated that the original amount of the debt was $9,717.06. No accounting or other explanation of this discrepancy has been offered to the appellant by the RO. Consequently, a detailed accounting would be helpful. Under the circumstances, the Board remands this case to the RO for the following actions: 1. The appellant should be provided with a specific and detailed accounting and explanation of exactly how the amount of his loan guaranty indebtedness was determined. Any funds realized by the VA from the resale of the property, following offset due to the expenses of the foreclosure and resale, should also be taken into consideration in this accounting. 2. The appellant should be asked to submit in writing a clarification of his intentions with regard to his desire for a personal hearing before the Board. If a hearing is desired, appropriate arrangements should be made. If a hearing is not desired, the appellant should be asked to submit any other information, evidence, or arguments that may be pertinent to this appeal. 3. The appellant should be provided with a copy of this remand and another financial status report form (VA Form 4-5655) and asked to provide a current financial status report. The RO should also request from the appellant complete copies, including all scheduled attachments, of his Federal income tax returns for 1992 through 1994, along with the updated financial status report. The current financial status report should include financial information of the appellant's spouse, and any other adult (18 years of age, or older) family member living in his immediate household. To the extent possible, the appellant should provide written documentation or verification of all items contained in the financial status report, particularly the monthly expenditures applied to other creditors. The appellant should also include proof of any disability income received by him or his spouse. 4. The appellant's claim should be reviewed by the RO. If the benefit sought continues to be denied, the appellant should be provided with a supplemental statement of the case. That supplemental statement of the case should specifically address those of the six elements found in 38 C.F.R. § 1.965 which the RO considers to be pertinent to the determination of whether the appellant should be accorded a waiver of his loan guaranty indebtedness under the standards of "equity and good conscience." The RO should also identify any other elements that should be applied to the facts and circumstances of this case indicating a need for reasonableness and moderation in the exercise of the Government's rights, such as whether the appellant attempted to mitigate the amount of the indebtedness through efforts to avoid foreclosure or through the proper maintenance of the subject property. If the benefit sought is not granted, the appellant should be given an adequate opportunity to respond prior to the forwarding of the appeal to the Board. The purpose of this remand is to procure clarifying data and to ensure due process of law. The Board intimates no opinion, legal or factual, as to the determination warranted in this case by reason of this remand. No action by the appellant is required, until he is so notified. RENÉE M. PELLETIER 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) (1994).