BVA9507158 
DOCKET NO.  93-13 960     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin

THE ISSUE

Entitlement to waiver of the recovery of an overpayment of
improved disability pension benefits in the calculated amount of
$3,482.

REPRESENTATION

Appellant represented by: Wisconsin Department of Veterans
Affairs

ATTORNEY FOR THE BOARD

Daniel J. McTavish, Associate Counsel

INTRODUCTION

The veteran had active military service from July 1954 to August
1966.

This appeal arises from a February 1993 determination by the
Committee on Waivers and Compromises (Committee) of the
Milwaukee, Wisconsin Regional Office (RO), which denied the
veteran a waiver of recovery of an indebtedness arising from an
overpayment of Department of Veterans Affairs (VA) improved
disability pension benefits, in the calculated amount of $3,482.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in substance, that he is entitled to a
waiver of the recovery of the overpayment of pension benefits
with which he is charged.  He asserts that he was only partly at
fault in the creation of the overpayment and that he tried to
give a fair estimate of his expenses.  He also contends that
recovery of the overpayment will create an undue financial
hardship to him and his wife.  He maintains that he never made
monthly payments of over $200 for a vacuum cleaner, as was
reported by the VA in the February 1993 letter to him.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
veteran's claim for waiver of the recovery of an overpayment of
improved disability pension benefits in the calculated amount of
$3,482.

FINDINGS OF FACT

1.  The RO has calculated that, during the period from August 1,
1991, to September 30, 1992, the veteran was overpaid pension
benefits totaling $3,482 as a result of its payment of pension
benefits based on incorrect information concerning the amount of
wages and unemployment compensation the veteran had received and
the amount of wages the veteran's wife had received.

2.  The veteran is primarily at fault in creating the overpayment
since he failed to properly report the amount of income received
by him and his wife.

3.  The latest detailed income and expense data, supplied by the
veteran and his wife, indicate that their combined monthly net
income exceeds their monthly expenses for necessities by over $80
per month.

4.  The failure of the Government to insist on its right to
repayment of the indebtedness would result in unfair gain to the
debtor and recovery would not result in financial hardship.

5.  There are no other elements of equity and good conscience
which support granting the requested waiver to the veteran.

CONCLUSION OF LAW

Recovery of the overpayment of pension benefits in the calculated
amount of $3,482 would not be against equity and good conscience.
38 U.S.C.A. §§ 5107, 5302 (West 1991); 38 C.F.R. §§ 1.963(a),
1.965(a) (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, we note that we have found that the veteran's claim is
well grounded within the meaning of 38 U.S.C.A. § 5107(a).  That
is, we find that he has presented a claim which is not inherently
implausible.  Further, after examining the record, we are
satisfied that all relevant facts have been properly developed
and that the data on file are sufficient for us to render a fair
and equitable determination of the matter at hand.

The record reflects that the veteran was awarded pension
benefits, effective August 1, 1991, based on annual countable
income of $6,600, consisting of his spouse's wages, as reported
by him on his initial application in July 1991.

In November 1991, the veteran was advised of the monthly rates of
pension and told that such were based solely on his spouse's
wages of $6,600.  He was provided a copy of VA Form 21-8768,
which advised him that the rate of pension paid depended upon the
amount of family income, that he should notify the VA if there
were any changes in income for himself or dependents, and that if
he did not notify the VA immediately of income changes, an
overpayment could result, which would be subject to recovery.  He
was told, in addition, that when reporting income, he should
report the amount and source and that the VA would compute the
amount which didn't count.

In his Eligibility Verification Report (EVR) completed by the
veteran in September 1992, he indicated that during the
annualization period from August 1, 1991 through July 31, 1992
family income consisted of his wages of approximately $3,800 and
his unemployment compensation of $3,650 and spouse's wages of
$10, 560.  He stated that he had started working in October 1991.
He reported that for the following annualization period,
beginning August 1, 1992, he expected wage income of $10,000 and
his spouse expected wage income of $10,500.  He reported
unreimbursed medical expenses of $1,330.

Based on this information, the RO took action to retroactively
terminate the award of pension, effective August 1, 1991, due to
excessive income.  As a result the overpayment currently at issue
was created.

A VA pension recipient must notify the VA of all circumstances
which will affect his or her entitlement to receive, or the rate
of, the benefit being paid.  Such notice must be furnished when
the recipient acquires knowledge that his or her income changed.
38 C.F.R. § 3.660(a)(1).

Because it has been determined by the Committee that there was no
willful intention on the part of the veteran to commit fraud,
misrepresent a material fact, or exercise bad faith in the
creation of an overpayment that has been assessed against him,
the Board's review is limited to the issue of whether the
evidence establishes that recoupment of the indebtedness would be
against equity and good conscience, in which case recovery of
that overpayment may be waived.  38 U.S.C.A. § 5302; 38 C.F.R.
§§ 1.963, 1.965.  The following is pertinent to this matter:

The standard "equity and good conscience"
will be applied when the facts and
circumstances in a particular case indicate
a need for reasonableness and moderation in
the exercise of the Government's rights.
The decision reached should not be unduly
favorable or adverse to either side.  The
phrase "equity and good conscience" means
arriving at a fair decision between the
obligor and the Government.  In making this
determination, consideration will be given
to the following elements, which are not
intended to be all-inclusive:

1.  Fault of debtor.  Where actions of
the debtor contribute to creation of
the debt.

2.  Balancing of faults.  Weighing
fault of debtor against VA fault.

3.  Undue hardship.  Whether
collection would deprive debtor or
family of basic necessities.

4.  Defeat the purpose.  Whether
withholding of benefits or recovery
would nullify the objective for which
the VA benefits were intended.

5.  Unjust enrichment.  Failure to
make restitution would result in
unfair gain to the debtor.

6.  Changing position to one's
detriment.  Reliance on VA benefits
result in relinquishment of a valuable
right or incurrence of a legal
obligation.

38 C.F.R. § 1.965(a).

In the present case, the overpayment at issue is shown by the
evidence of record to have been due to the veteran's failure to
provide correct information concerning the amount of wages and
unemployment compensation the veteran had received and the amount
of wages the veteran's wife had received.  In this regard, it is
noted that the veteran was provided information about the monthly
rates of pension, and the amount and source of income upon which
such rates were computed, in November 1991, after his return to
work.  He was placed on notice at that time that the VA did not
have the correct income information upon which to base his award.
Yet he chose to accept VA pension checks to which he should have
known he was not entitled.  Thus the overpayment was clearly due
to fault on his part.  Since the VA took prompt action to adjust
his award, the overpayment did not arise from VA fault.

We further observe that the veteran has argued that recovery of
his indebtedness would impose an undue financial hardship.  In
support of this contention, the veteran and his wife provided a
Financial Status Report in November 1992 showing that their
combined monthly net income of $1,443 exceeds their monthly
expenses of $1,361 by $81.  The veteran pays a number of monthly
installment payments, none of which is shown to be past due.  He
owes to the Government the same consideration that he extends to
his other creditors.  In this regard, the Board acknowledges that
the reference to vacuum cleaner payments as being more than $200
monthly appears to be in error.  However this amount was derived
from the veteran's Financial Status Report, and was possibly a
typographical error on his part.  At any rate, there is no
showing that the veteran or his wife would be deprived of the
necessities of life if the debt were repaid.

The failure of the Government to insist upon its right to the
repayment of this debt would also result in the unjust enrichment
of the veteran at the expense of the Government since he would be
allowed to retain funds to which he is not legally entitled.
Clearly the veteran was not entitled to the pension benefits
which were based on incorrect information concerning income
received by him and his wife.  Pension is an income based
program, as the veteran has been advised; during the overpayment
period, his income exceeded the applicable maximum statutory
rate.  Thus repayment would not defeat the purpose of the
benefits.

Further review of the evidence of record discloses no other
element of equity and good conscience which would persuade the
Board that the Government should forego its right to the
collection of this debt.  Consequently, the veteran must repay to
the Government his disability pension indebtedness.

In reaching this decision the Board has considered the doctrine
of granting the benefit of the doubt to the veteran but does not
find that the evidence is approximately balanced such as to
warrant its application.

ORDER

The appeal is denied.

          N. R. ROBIN
          Member, Board of Veterans' Appeals

          (CONTINUED ON NEXT PAGE)
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.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.