BVA9505911 DOCKET NO. 92-19 525 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether the rate of the veteran's improved disability pension was properly reduced effective February 1, 1989, and November 1, 1990. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel REMAND The veteran had active service from July 1943 to December 1945. He is service-connected for residuals of malaria, rated noncompensable, and conversion reaction, rated 10 percent disabling. Effective from April 1987, he has been rated permanently and totally disabled and in need of regular aid and attendance by reason of disabilities including status post cerebrovascular accident with residual left hemiplegia. The current appeal comes before the Board of Veterans' Appeals (Board) on appeal from an action of December 1991 by the Department of Veterans Affairs (VA), Jackson, Mississippi, Regional Office (RO) which reduced the veteran's improved disability pension award effective February 1, 1989, and November 1, 1990, on the basis of the receipt of interest by the veteran and his spouse. In January 1992, the veteran requested a waiver of the overpayment created by the retroactive adjustment in his award. A July 1992 decision by the Committee on Waivers and Compromises denied entitlement to waiver on the basis of misrepresentation. A July 1992 VA letter, a copy of which is of record, informed the veteran of this fact and of his right to appeal from the denial of waiver of the overpayment. In the substantive appeal filed by the veteran on the issue currently before the Board, he again stated that he seeks waiver of the debt and the Board construes this as a notice of disagreement with the waiver denial. The issue of waiver of the overpayment is not currently in appellate status before the Board and is referred to the RO for further appellate processing, including the issuance of a statement of the case on that issue. The statement of the case indicates that it was discovered that the veteran and his spouse had interest income which had not been previously reported. Evidently, this income was determined to have been received in 1989. The statement of the case indicates that the veteran and his spouse signed verification letters indicating that they did receive the income in question. The veteran's representative has pointed out that the referenced letters signed by the veteran and his spouse affirming that they received the income in question are not of record. Therefore, it is contended, while the record contains documentation of additional income for the period beginning in November 1990, there is no documentation of record as to the receipt of additional income prior to November 1990. The Board concludes that the RO has presumably been exercising the appropriate caution in excluding documentation containing confidential income information from the claims file. While the Board understands and commends the concerns of the regional office in this respect, the precepts of due process require that documentation of the material evidence which forms the basis of the regional office determinations be included in the claims folder for appellate review. To this end, M21-I, Part IV, Chapter 31, Subchapter IX, (particularly paragraph 31.70) now provides ways for extracting "sanitized" documentation for inclusion in the claims folder. Therefore, the case is REMANDED to the RO for the following: The RO should consult M21-I, Part IV, Chapter 31, Subchapter IX, which material was formerly set out in VBA Circular 20-91- 11 (February 22, 1993), and extract appropriate documentation for inclusion in the claims folder which comprehensively supports any finding that the veteran and his spouse were in receipt of additional income, the date they began to receive that income, and the amount of such income. After completion of the above requested development, the issue of whether the rate of the veteran's improved disability pension was properly adjusted effective February 1, 1989, and subsequently, should be readjudicated by the RO. Thereafter, if appropriate, the veteran and his representative should be furnished with a supplemental statement of the case which provides laws and regulations governing reduction and discontinuance of a running award and given the appropriate opportunity to respond thereto. Thereafter, the claims file, including the above requested evidence, should be returned to this Board for further appellate review, if in order. No action is required by the veteran until he receives further notice. The purposes of this REMAND are to procure clarifying data and accord due process. The Board intimates no opinion, either legal or factual as to the ultimate disposition of this appeal. JAMES R. ANTHONY 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) (1992).