BVA9507607 DOCKET NO. 93-16 794 ) DATE ) ) On appeal from the decision of the Committee on Waivers and Compromises of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits, including whether the overpayment was properly created. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD R. E. Coppola, Associate Counsel INTRODUCTION The claimant is the surviving spouse of a veteran who served on active duty from December 1945 to October 1946. This matter came before the Board of Veterans Appeals (Board) from a November 1990 decision by the Committee on Waivers and Compromises (Committee) of the Cleveland, Ohio, Regional Office (RO). REMAND In July 1983, the RO awarded the claimant entitlement to monthly death pension, effective from February 1, 1983. The claimant submitted a letter in November 1983 indicating that she was receiving a two-year company insurance benefit which was scheduled to end in February 1985. The claims folder shows that the veteran's job with General Motors Corporation (GM) entitled the claimant to those benefits. She also stated that her income was $300 per month at that time. In October 1989, the claimant submitted an Eligibility Verification Report (EVR), VA Form 21-0518-1, indicating receipt of $1,865.00 in earnings from July 1988 to June 1990, without additional income from any other source. She submitted another EVR that month showing receipt of $1,935.50 for that period, with GM pension benefits of $165.55 per month. The claimant then submitted a separate statement indicating that she began receiving GM benefits in 1985 or 1986, and that the initial monthly amount was $139.00 per month. The RO requested the claimant to provide information regarding the dates of all increases and amounts received by GM, but it appears that the claimant did not respond. In August 1990, the RO notified her of a proposed a reduction in monthly VA compensation benefits from $318. to $153 dollars per month, effective February 1, 1985. In November 1990, the RO notified the claimant that the proposed action had been implemented and that this resulted in an overpayment in the amount of $9,435. In December 1990, the claimant submitted a statement disputing the existence and amount of the overpayment claimed by the VA. She also submitted additional statements requesting a waiver of any overpayment. In February 1991, the Committee denied the veteran's request for waiver of the overpayment. The RO did not adjudicate the issue of whether the overpayment was properly created. The United States Court of Veterans Appeals (Court) has concluded that it is improper to adjudicate an application for waiver without first deciding a veteran's challenge to the lawfulness of the debt asserted, see Schaper v. Derwinski, 1 Vet.App. 430 (1991). Although this holding pertained to an overpayment under the loan guaranty program, the Board finds this sufficiently persuasive to warrant further adjudicative action. Although the RO issued a letter to the claimant in January 1991 showing how the Committee determined the amount of overpayment, the RO has not formally reviewed the question of whether the amount of the overpayment was properly created. The evidence includes a June 1991 Report of Contact from the Social Security Administration (SSA) which indicates that the claimant remarried in April 1991. In June 1991, the RO proposed termination of the claimant's death pension benefits, effective February 1, 1985. The RO determined that this resulted in the creation of an additional overpayment in the amount of $865. In a December 1991 letter, the claimant acknowledged this indebtedness, but continued her dispute with the previously determined indebtedness. In connection with the claim for waiver of overpayment, the evidence reveals that the most recent financial status report is dated in December 1990. In an Income-Net Worth and Employment Statement, VA Form 21-527, received in July 1992, the claimant reported receipt of $100 per month in food stamps. She also indicated that a decision for SSA benefits was on appeal at that time. The evidence also includes information forms from the SSA Supplemental Security Income program. It remains unclear whether the claimant is receiving SSA benefits, the amount of such benefits, or the date these benefits began. The representative requests that the case be remanded to determine the financial status of the claimant. The Board finds that clarification of the claimant's financial status is necessary. Under the circumstances of this case, the Board is of the opinion that additional assistance is required. The case is REMANDED to the RO for the following actions: 1. The RO should request the claimant to submit a complete record of all GM pension benefits received since 1985, including the date payments initially began and the specific amount of each monthly payment. The RO should assist the claimant at her request. Any information obtained should be associated with the claims folder. 2. The RO should request the claimant to specify whether she is receiving or was receiving SSA benefits, and, if so, she should indicate the specific type of SSA assistance or benefits, the date such payments began and the monthly amount of each payment. The RO should assist the claimant at her request. Any information obtained should be associated with the claims folder. 3. The RO should provide the claimant with a financial status report, VA Form 4-5655, for her completion. The RO should assist the claimant in completing this form at her request. Any information obtained should be associated with the claims folder. 4. The RO should formally adjudicate the issue of whether the overpayment in the amount of $9,435 charged to the claimant was properly created. The claimant should be informed as to any action taken and of her appellate rights. 5. If an overpayment exists, the Committee should again address the issue of entitlement to a waiver of recovery of any overpayment remaining with consideration given to all applicable laws and regulations and to include a detailed analysis of the equitable factors related to the facts and circumstances of this case. In the event findings remain adverse to the claimant, she and her representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. The supplemental statement of the case should contain all laws and regulations applicable to the issue of waiver set forth in 38 U.S.C.A. § 5302 (West 1991) and 38 C.F.R. §§ 1.963, 1.965 (1994). Thereafter, the case should be returned to the Board after compliance with all appropriate appellate procedure. No action is required of the claimant until she is further notified. In reaching these conclusions the Board intimates no opinion, either legal or factual, as to the ultimate outcome of this case pending completion of the requested development. 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).