BVA9501784 
DOCKET NO.  93-08 816     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Seattle,
Washington

THE ISSUE

Entitlement to waiver of the recovery of an overpayment of
disability pension benefits, in the calculated amount of $6,000.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Suzie St. Vil, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1953 to April 1955.
He has been represented throughout his appeal by The American
Legion.

This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a June 1992 decision by the
Committee on Waivers and Compromises (Committee) of the Seattle,
Washington Regional Office (RO), as well as from earlier award
action taken by the RO in July 1990.  The Committee, in a
decision of June 1992, granted a partial waiver of an overpayment
of disability pension benefits, reported to be in the amount of
$6,879.40.  According to the Committee decision, this action left
a $6,000 remaining indebtedness for which recovery was not
waived.  The appeal was received at the Board in April 1993.

REMAND

The record reflects that the overpayment in question was created
after it was learned in April 1990 that the veteran had failed to
notify the Department of Veterans Affairs (VA) that he had been
employed and received wages during the period from 1978 to 1988.
As a result, in July 1990, action was taken to retroactively
terminate the veteran's award effective January 1, 1979, based
upon excessive income, resulting in an overpayment of $12,879.40.

At the time of a personal hearing before a member of the
Committee in May 1992, the veteran's service representative
argued that there were no Eligibility Verification Reports (EVRs)
contained in the claims folder for the period of the overpayment,
which would either verify or dispute the veteran's contention
that he reported working.  The veteran testified that a
representative from another service organization told him that he
could work while drawing pension benefits.  The veteran indicated
that he did report income earned as a part-time school driver
every year.  The veteran acknowledged receiving notices from the
VA requesting that he promptly report income from all sources and
all changes in his income; however, the veteran maintained that
he was under the impression that the commissions earned while
working at Newton Manufacturing Company did not need to be
reported.  In addition, the Board observes that, according to the
veteran's Financial Status Report of May 1992, there is a
possibility of a third source of wage income.  He stated that he
had worked as a security guard since 1976.  The service
representative requested copies of EVRs for the overpayment
period as well as an audit of the veteran's account.  It was
argued that as a result of his age and meager income, the veteran
would be unable to repay the overpayment.

Subsequently, in a decision of June 1992, the Committee granted a
partial waiver of $6,879.40, leaving an unpaid balance of $6,000,
the recovery of which was determined not to be against equity and
good conscience.

In this regard, the Board notes that the claims folder contains
only one EVR dated in November 1985; there are no EVRs of record
for the remainder of the overpayment period.  It is possible that
these were made a part of the investigation file at the time the
VA's Office of Inspector General conducted its investigation in
1987.  In addition, while the veteran's representative requested
an audit of the veteran's account, it does not appear that such
report was ever prepared.  Further, we note that the most recent
financial status report of record was submitted in May 1992, more
than two years ago.  Therefore, the veteran's ability to repay
any overpayment is in question.

In light of the foregoing, and in keeping with VA's duty to
assist veterans in the development of facts pertaining to their
claims, 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a)
(1993), the Board finds that further development is needed.
Accordingly, the case is hereby REMANDED to the RO for the
following actions:

1.  The RO should conduct a search of
records in an attempt to locate copies of
EVRs for the period from 1978 through
1988.  These forms should be associated
with the claims folder.

2.  The RO should prepare an audit of the
veteran's account during the overpayment
period.  The audit must include monthly
amounts and sources of countable income
and exclusions.  Once compiled, the audit
report must be associated with the claims
folder, and a copy must be sent to the
veteran.

3.  The veteran should be furnished a
Financial Status Report (VA Form 4-5655),
and be afforded the opportunity to provide
current income and expense data for review
by the Committee.  He should be reminded
to provide accurate information, as to all
wage income, Social Security benefits, and
other sources of income, as well as
correct amounts for monthly expenses and
assets.

4.  Thereafter, the Committee should
reevaluate the veteran's request for
waiver of the recovery of the overpayment
of disability pension benefits, under the
standard of equity and good conscience.
Each and every element of the standard
should be considered and discussed.  The
basis of the decision should be clearly
set forth, and reference should be made to
the pertinent facts, the applicable laws
and regulations, and the reasons for the
decision.

5.  In the event the determination remains
adverse to the veteran, both he and his
representative should be furnished a
supplemental statement of the case which
fully sets forth all laws, regulations and
reasoning.  A reasonable period of time in
which to respond should be given.

After the above actions have been accomplished, the case should
be returned to the Board for further appellate consideration, if
otherwise in order.

By this REMAND the Board intimates no opinion, either legal or
factual, as to the ultimate determination warranted in this case.
No action is required of the veteran until he receives further
notice.  The purpose of this REMAND is to assist the veteran and
afford due process of law.

          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).