BVA9507603 DOCKET NO. 93-13 784 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to waiver of recovery of an overpayment of improved death pension benefits in the calculated amount of $14,552. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Darryl A. Joe, Associate Counsel INTRODUCTION The veteran had active military service from September 1945 to January 1947; he died in January 1967. The appellant in this case is his widow. This appeal arises from a December 1992 determination by the Committee on Waivers and Compromises (Committee) of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's request for waiver of recovery of an overpayment of improved death pension benefits in the calculated amount of $14,552. REMAND At the outset, the Board recognizes that there is some uncertainty as to the exact basis for the Committee's determination in this case. The Committee's December 1992 decision on the waiver claim indicates that there was no evidence of fraud, misrepresentation, or bad faith on the part of the appellant in the creation of the overpayment at issue. Furthermore, the Committee decision reflects that waiver of recovery of the overpayment was denied based upon a determination that recovery of the overpayment would not be against the standards of equity and good conscience. The appellant was advised of the Committee's decision, and the basis for denial of her request for waiver, by a letter dated later in December 1992. The statement of the case, issued in February 1993, shows, however, as reasons for decision, that the appellant acted in bad faith. That document included only the legal criteria relevant to the preclusion of waiver by fraud, misrepresentation, or bad faith. There was no reference in the document to the standards of equity and good conscience, as applicable to the appellant's claim. In view of the Committee's 1992 determination finding no "bad faith" or other statutory bar to waiver consideration, revision of such action in the statement of the case is not appropriate. The Board further notes that the overpayment in this case was created for the period beginning February 1, 1989, through March 31, 1992, after it was learned that the appellant was in receipt of wage income which she had not previously disclosed to the VA. In a letter dated April 21, 1992, the RO acknowledged the appellant's confirmation of the amount of income she earned in 1989. However, the Board has been unable to locate such "confirmation" by the appellant, or any other income data relied upon by the RO in its determination that the appellant's wages exceeded the applicable annual income limit, thus disqualifying her from entitlement to VA pension benefits. In the absence of such documentation, we find that the claims folder as currently constituted contains insufficient information for the Board to make a determination on the appellant's claim. In light of the above, this case is REMANDED for the following actions: 1. In the event that there is available at the RO correspondence from the appellant confirming the amount of income she received during the overpayment period from 1989 to 1992, through wages, such confirmation should be incorporated into the claims folder. If the RO is unable to locate such documentation, it should be obtained from the appellant and placed into the claims folder. 2. The Committee should then reconsider the appellant's claim for waiver of recovery of her indebtedness. The Committee's decision should clearly explain the basis for the determination made, i.e., whether it is based on a finding of fraud, misrepresentation or bad faith, or whether it is based on consideration of the elements of equity and good conscience. In view of the December 1992 decision finding no fraud, bad faith or misrepresentation, appropriate consideration should be given to the provisions of 38 C.F.R. § 3.105 (1994) in the event it is determined that the 1992 decision of the Committee should be reversed. 3. If the Committee determines that there is no fraud, bad faith or misrepresentation, then the RO should ensure that the record includes contemporaneous financial status information, and that the Committee's decision reflects consideration of such data as well as every other element of the standard of equity and good conscience. 4. If the determination is adverse to the appellant, she and her representative should be furnished a supplemental statement of the case which addresses the action outlined above, discusses all relevant evidence, and contains a clear explanation of the reasons for the decision made. If the Committee determines that recovery is precluded by fraud, misrepresentation or bad faith, 38 U.S.C.A. § 5302(c) and 38 C.F.R. § 1.965(b) (1994) should be cited and the rationale for such finding should be clearly expressed. If those criteria are not found to preclude waiver, the reasons for a determination as to equity and good conscience should be set out. The appellant and her representative should be given a reasonable period of time within which to respond. Thereafter the case should be returned to the Board for further appellate review, if in order. No action is required of the appellant unless or until she is notified. The purposes of this remand are to develop the record and to accord due process of law. The Board expresses no opinion as to the ultimate determination warranted in this case. N. R. ROBIN 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).