BVA9500185 
DOCKET NO.  93-03 286     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUE

Entitlement to a waiver of the recovery of an overpayment of
Section 306 pension benefits in the calculated amount of $764, to
include the issue of whether the overpayment was properly
created.

REPRESENTATION

Appellant represented by: AMVETS

ATTORNEY FOR THE BOARD

S. L. Kennedy, Counsel

INTRODUCTION

The veteran served on active duty from November 1944 to March
1946.

This matter came before the Board of Veterans' Appeals (Board) on
appeal from a June 1992 decision by the Committee on Waivers and
Compromises (Committee) of the Cleveland, Ohio, Department of
Veterans Affairs (VA) Regional Office (RO).  The notice of
disagreement was received in August 1992.  The statement of the
case was issued in September 1992.  The substantive appeal was
received in November 1992.

REMAND

The VA has a duty to assist a claimant in the development of
facts pertinent to his or her claim.  38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1993).  From a careful review of the
evidence in this case, the Board has determined that there is
additional development that must be completed by the RO in order
to fulfill this statutory duty prior to appellate review of the
appellant's claim.

In reviewing the record on appeal, the Board notes that in
statements submitted on the appellant's behalf the creation of
the debt in this case appears to be in dispute.  It is
essentially asserted that the veteran submitted his eligibility
verification report in a timely manner, but that action to
terminate the veteran's pension benefits based on the information
provided in this report was not taken until 5 months after its
receipt.  It is argued that by failing to take prompt action on
the information timely provided by the veteran, action by the VA
materially contributed to the overpayment at issue in this case.
Such improper delay on the part of VA, it is alleged, constitutes
sole administrative error and therefore, the debt in this case
should be deemed to have never been established.

The United States Court of Appeals (Court) has clearly stated its
intention to discourage piecemeal consideration of claims, and
has held that if one issue has a significant impact on another
issue, then such issues are inextricably intertwined and must be
adjudicated together.  Harris v. Derwinski, 1 Vet.App. 180
(1991).  Moreover, the Court has clearly stated that when a
debtor requests a waiver and simultaneously asserts that the
underlying debt is invalid, the VA must resolve both matters.
Schaper v. Derwinski, 1 Vet.App 430 (1991).  The Board finds that
such a scenario exists in the case at bar, and that the RO should
address the creation issue on remand.

In view of the foregoing, and in order to fairly and fully
adjudicate the appellant's claim, the case is REMANDED to the RO
for the following action:

1.  The RO should develop and adjudicate
the issue of whether the creation of the
overpayment of VA Section 306 pension
benefits in the calculated amount of $764
was proper or whether the overpayment was
the result of sole administrative error.
The RO should state the amount due and
paid, and explain how the amount of the
overpayment was calculated.  The RO should
clearly indicate amounts paid to the
appellant and the dates of payments, as
well as the amounts which should have been
paid to him.  The RO should explain how the
amount that should have been paid was
derived and provide information as to the
sources of the income considered.  The
periods covered for the overpayment in
question must be set forth separately,
i.e., beginning and ending dates, amounts,
and reason for the overpayments.

2.  If the determination is adverse to the
appellant, the RO should provide the
appellant and his representative with a
supplemental statement of the case setting
forth a clear and concise explanation of
how the dollar amount of the overpayment
was calculated, a citation to pertinent
laws and regulations, and detailed reasons
and bases for the decision.  The appellant
and his representative should be provided
with an opportunity to respond.

The case should be returned to the Board for further appellate
review on the issues currently in appellate status as well as any
issue placed in appellate status during the course of this
REMAND.  The purpose of this REMAND is to afford the appellant
due process of law.  The Board intimates no opinion, either
factual or legal, as to the ultimate conclusion warranted in this
case.

          EUGENE A. O'NEILL
          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).