BVA9506038 DOCKET NO. 93-09 706 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE To be clarified. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD Robert B. Swanson, Associate Counsel INTRODUCTION The veteran had active service from February 1941 to July 1962. This matter comes before the Board of Veterans' Appeals (Board) on ostensible appeal from November 1992 and January 1993 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board is cognizant of the veteran's claim for a dependency allowance for his granddaughter, which he submitted in November 1992. This matter is referred to the RO for the appropriate action. REMAND After reviewing the record on appeal, the Board finds that further development is necessary to assist in the resolution of the veteran's claims. It would appear that the issue on which the veteran is actually appealing is different from the issue certified by the RO. In this regard, we note that the wording of the veteran's notice of disagreement was not precise as to his intentions. Accordingly, no criticism of the regional office is implied by this remand. The RO developed the veteran's claim as a dispute with respect to whether his spousal allowance was properly terminated beginning July 1, 1990. Based on a review of the veteran's notice of disagreement in the context of subsequent correspondence from him, however, the Board concludes that the veteran was actually only seeking a waiver as to the overpayment of a spousal allowance, and a waiver as to the overpayment of helpless child benefits. In July 1991 and July 1992, the RO asked the veteran to submit the social security numbers of his dependents. Later the same respective months, the veteran reported only his own social security number. In November 1992, the RO notified the veteran that it proposed to reduce his benefits in sixty days unless he supplied the requested social security numbers for his dependents. Later the same month, the veteran reported that he had been divorced since June 1990. Even later the same month, the RO retroactively terminated the veteran's spousal allowance effective from July 1, 1990, and asked the veteran to submit the social security number for his son, [redacted], Jr. and to advise the VA whether [redacted], Jr., still lived in the veteran's household. In December 1992, the veteran (noting that his statement was in reference to RO letters dated November 25, 1992, and November 27, 1992, and to a December 11, 1992 letter from the St. Paul, Minnesota, RO) reported that he disagreed with the RO's decision to charge him with an overpayment, and he requested the necessary documents to appeal the decision. He also indicated that [redacted], Jr., had not lived with him since [redacted], Jr., was eighteen. In January 1993, the RO retroactively terminated the veteran's helpless child benefits effective from November 1, 1992. The veteran was advised that this award adjustment resulted in an overpayment. In a statement submitted later the same month, the veteran indicated that he disagreed with the RO's decision to find him indebted to the VA for the helpless child benefit. In February 1993, the RO sent the veteran a statement of the case. The statement of the case addressed the issue of whether the veteran's spousal allowance was properly terminated beginning July 1, 1990. Later the same month, the veteran submitted an appeal. In the appeal, he indicated that he did not disagree with the overpayment with respect to the spousal allowance, but that he felt he should not be penalized with respect to the helpless child benefits because he was unaware that he had been receiving such benefits. With respect to the termination of the veteran's spousal allowance, he is apparently seeking a waiver of the overpayment of such benefits. Even though he has not explicitly requested a waiver, in a December 1992 notice of disagreement submitted directly after the RO apparently sent him a notice of overpayment earlier in December 1992, he indicated that he was not at fault in the creation of the overpayment. Further, he requested that he be provided with necessary information so that he could "appeal the overpayment." Moreover, he indicated in his February 1993 appeal that he knew he had not been entitled to spousal benefits subsequent to his divorce, which indicates he did not disagree with the creation of the overpayment. However, it does not necessarily follow that he is not entitled to a waiver. Further development is, therefore, indicated because there is no indication that his waiver request was considered as the record on appeal does not show that his request was referred to the RO Committee on Waivers and Compromises. With respect to the termination of the veteran's helpless child benefits, he is apparently seeking a waiver of the overpayment of such benefits because even though he did not explicitly request a waiver, he filed a notice of disagreement, in January 1993, directly after the RO sent him a January 1993 notice of an award reduction, which indicates that he was responsible for an overpayment. He also indicated in his February 1993 appeal that he was not at fault in the creation of the overpayment because he was unaware that he had been receiving helpless child benefits. Further development is, therefore, indicated because there is no indication that his waiver request was considered as the record on appeal does not show that his request was referred to the RO Committee on Waivers and Compromises. Since additional development is indicated by the record on appeal, the case is REMANDED to the RO for the following action: 1. The RO should develop the veteran's claims for waiver of the overpayment of a spousal allowance and helpless child benefits, and should associate all documentation with respect to such claims with his claims file. 2. After the above development has been completed, the RO should refer the veteran's waiver claims to the Committee on Waivers and Compromises. If the determination as to either or both claims is unfavorable to the veteran, a statement of the case should be sent to the veteran and to his representative. The statement of the case should set forth all evidence of record, any legal authority relied upon that was not previously cited, the decision(s), and the bases for the decision(s). After the statement of the case is sent, the veteran and his representative should be given the appropriate time in which to respond. Thereafter, subject to appellate procedures, the case should be returned, if appropriate, to the Board for further consideration. The purpose of this REMAND is to secure clarifying data and to ensure due process of law. No action is required by the veteran until he receives further notice. 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) (1994).