BVA9500014 
DOCKET NO.  93-10 818     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Committee on Waivers and
Compromises in
St. Paul, Minnesota

THE ISSUE

Entitlement to a waiver of the recovery of an overpayment of
Department of Veteran's Affairs pension benefits.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

R. J. Rolfsen, Jr., Counsel

REMAND

The veteran served on active duty from May 1943 to December 1945.

This appeal stems from a December 1992 decision of the St. Paul,
Minnesota, Department of Veterans Affairs (VA) Committee on
Waivers and Compromises (COW).

Initially, the Board of Veterans' Appeals (Board) finds that the
veteran's claim is "well grounded" within the meaning of 38
U.S.C.A. § 5107 (West 1991).

A review of the evidence of record reflects that the COW denied a
waiver of the recovery of the overpayment of the VA pension
benefits in question on the basis that waiver was precluded since
the veteran was guilty of fraud or misrepresentation.  In
explanation of this determination, it was noted merely that "Wife
refused to notify VA and veteran when she returned to work."  Of
record are Eligibility Verification Reports dated in 1987, 1988,
1989, 1990, 1991 and 1992 on which the veteran reported that his
spouse had not earned any wages from employment in the previous
year and did not expect to earn any in the upcoming year; it was
subsequently discovered that the veteran's spouse had been
employed in 1988, 1989, 1990 and 1991.

Under the law, recovery of any payment or the collection of an
indebtedness may not be made if there is any indication of fraud,
misrepresentation or bad faith on the part of the person having
an interest in obtaining a waiver.  38 U.S.C.A. § 5302(c).
(1993).  Misrepresentation, as explained and defined in Chapter 8
of MP-4, VA Financial Policy Manual, is very similar to fraud.
In order to establish fraud or misrepresentation, there must be
willful misrepresentation of a material fact, or the willful
failure to disclose a material fact, with the intent of obtaining
and retaining VA benefits.  The willful intent to either
misrepresent or failure to disclose must be done with knowledge
that such misrepresentation or failure would result in an
erroneous or improper award.  These essential elements were not
discussed or cited in the COW determination or the subsequent
statement of the case.

Under these circumstances, this case is remanded for the
following action:

The COW should reconsider the case in light
of the Board's discussion above and issue a
supplemental decision and, as applicable, a
supplemental statement of the case.  If it
is again determined that fraud or
misrepresentation  is present, there should
be a discussion of the elements essential
to a finding of fraud or misrepresentation
with application to the evidence in this
case.

If the claim remains denied, the case should be returned to the
Board following appropriate appellate processing.  No action is
required by the veteran until he receives further notice.  No
indication is made by this remand as to the outcome warranted in
this case.

          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) (1993).