BVA9505397 DOCKET NO. 93-10 124 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to a waiver of the recovery of an overpayment of improved death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran, who served on active duty from June 1918 to June 1919, died in July 1971. The appellant is his widow. This appeal arises from an August 1992 decision by the Committee on Waivers and Compromises (COW) located in the Sioux Falls, South Dakota (RO). The appellant's representative has referred to a claim by the appellant for service connection for the cause of the veteran's death. This issue is not currently before the Board of Veterans' Appeals (Board), and is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that repayment of the indebtedness would result in undue financial hardship. She asserts that, as she is 96 years old and her health is progressively getting worse, her assets will be required to pay for future medical expenses. 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 appellant's claim for waiver of the recovery of the overpayment of improved death pension benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the originating agency. 2. The appellant's repeated failure to report her receipt of interest income caused the creation of the overpayment. 3. The appellant was clearly at fault in the creation of the overpayment and it is not shown that collection of the indebtedness would deprive the appellant of basic necessities. Failure to recover the overpayment would result in unfair gain to the appellant. CONCLUSION OF LAW Recovery of the indebtedness would not be against equity and good conscience. 38 U.S.C.A. §§ 5107, 5302 (West 1991); 38 C.F.R. §§ 1.963, 1.965 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking waiver of recovery of an overpayment of improved death pension benefits. A review of the evidence of record reflects that the appellant was awarded Department of Veterans Affairs (VA) death pension benefits in August 1971. During 1992, it was determined that she had had unreported interest income in 1989 and during the succeeding years. This unreported interest income raised her income above the applicable limits. Accordingly, by award action in June 1992, her benefits were retroactively reduced, effective February 1, 1989, and retroactively terminated, effective December 1, 1989. This resulted in an overpayment of $8,651. By award action in November 1992, the appellant's pension award was reinstated for the period from December 1989 after it was determined that the appellant had had unreimbursed medical expenses for the respective annualized periods. By reason of the additional interest income, the amended award rates were lower than the rates that had been paid for the respective annualized periods since December 1989 but they served to reduce the overpayment to $4,033. The amended monthly award rates were as follows: $77 effective from December 1989, $87 effective from December 1990, $130 effective from January 1991, $137 effective from December 1991, and $204 effective from January 1992. The amount of the overpayment was reduced thereby to $4,033. On the basis of the record before it, the COW determined that the overpayment could not be attributed to fraud, misrepresentation or bad faith on the part of the appellant. The Board concurs with this finding. Therefore, the sole question for consideration by the Board at this time is whether collection of the indebtedness should be waived under the principles of equity and good conscience. Recovery of an overpayment of any VA benefit may be waived if recovery of the indebtedness from the payee would be against equity and good conscience. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.963(a). The factors which must be considered are the extent to which the actions of the appellant contributed to the creation of the debt, a weighing of the fault on the part of the appellant against any VA fault, whether collection would deprive the appellant of basic necessities, whether recovery would nullify the objective for which the benefits were intended, whether failure to make restitution would result in unfair gain to the appellant, and whether the reliance on the VA benefits resulted in relinquishment of a valuable right or incurrence of a legal obligation. 38 C.F.R. § 1.965. In considering these factors, the Board notes that there was significant and repeated fault on the part of the appellant. The appellant had reported in her January 1990 Eligibility Verification Report (EVR) that she had no interest income for the period from December 1, 1988, through November 30, 1989, and that she did not know what to expect as to interest income during the period from December 1, 1989, through November 30, 1990. In addition, she reported that her net worth consisted of only $1,050 in cash and bank accounts. In her January 1991 EVR she reported that she had received $107 in interest and dividend income for the period from December 1, 1989, through November 30, 1990, and that she expected approximately $100 in interest and dividend income during the period from December 1, 1990, through November 30, 1991. She stated her net worth was $940. When the appellant originally submitted her EVR in January 1992, she left blank the box for reporting interest and dividends for the period December 1, 1990, through November 30, 1991. She did, however, report a net worth of $38,830.22 in cash and bank accounts. In response to a VA request that she fully complete the form, the appellant resubmitted the EVR in February 1992. She reported total interest or dividend income of $2,552 for the period December 1, 1990, through November 30, 1991. The appellant, in April 1992, stated that she had received $2,056 in interest income in 1989, $2,282 in interest income in 1990 and $2,019 in interest income in 1991. She stated she currently had money in the bank amounting to $20,301. While the overpayment resulted from the appellant's failure to accurately report to the VA her receipt of interest income, this fault is only one factor to be considered. In considering the other factors, the Board notes that, according to a July 1992 financial status report submitted by the appellant, her total monthly net income was $598. This included $430 in Social Security benefits and interest income of $168. (It must be noted that this was prior to the November 1992 reinstatement of her VA pension award.) The reported monthly expenses totaled $665. The expenses included $250 for rent or mortgage payment, $150 for food, $25 for utilities and heat, $10 for telephone service, $55 for insurance, $100 for clothing, $50 for unreimbursed medical expenses and $25 for personal expenses. There were no monthly payments on installment contracts and other debts. She did not report owning a car or home and reported that she had $20,301 in the bank. While reported monthly expenses exceeded monthly income by $67, the appellant, with more than $20,000 in the bank, listed no debts. Further, as noted above, the financial status report did not take account of VA pension entitlement which, at that time, had been terminated but which was subsequently reinstated. Moreover, the amount of the appellant's net worth would seem unclear in view of the fact that she had reported only six months before that it was $38,830. In any event, it was currently reported as being over $20,000. Considering the overall financial picture, the Board cannot conclude that recovery of the overpayment would deprive the appellant of basic necessities. Rather, failure to recover the overpayment in question would result in unfair gain to the appellant. Moreover, it is not shown that recovery would nullify the objective for which the benefits were intended or that the reliance on the VA benefits resulted in relinquishment of a valuable right or incurrence of a legal obligation. Accordingly, it is the judgment of the Board, after full consideration, that the recovery of the overpayment, in reasonable regular installments, would be is consistent with the standard of equity and good conscience. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Entitlement to a waiver of the recovery of an overpayment of improved death pension benefits is denied. 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. 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.