BVA9505602 DOCKET NO. 93-11 449 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to waiver of recovery of an overpayment of improved death pension benefits. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Robert B. Swanson, Associate Counsel INTRODUCTION The appellant is the surviving spouse of the veteran. The veteran had active service from May 1944 to June 1946, and died in June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1992 decision by the Department of Veterans Affairs (VA) Committee on Waivers and Compromises (COW) of the Regional Office (RO) in Montgomery, Alabama. REMAND The appellant is seeking a waiver with respect to an overpayment of improved death pension benefits. After reviewing the record on appeal, the Board finds that further development is necessary to assist in the resolution of the appealed issue. In August 1992, the RO terminated the appellant's improved death pension benefits retroactively to May 1989, which was the date of her entitlement, based upon excessive income, including Social Security disability benefits, retirement benefits, interest income, and a Workers' Compensation settlement, which had not been previously reported. It is unclear whether the appellant's benefits were properly terminated retroactively to May 1, 1989, because the dates that she began received income from the foregoing sources other than Social Security disability benefits are not of record. The dates she received income from the aforementioned sources dictate whether her benefits should have been reduced, terminated, reinstated, or any combination thereof because of the end of the month rule, which states that income does not count as income until the month following the month in which it was initially received. 38 C.F.R. § 3.660 (1994). Thus, the dates and the amounts of any income received by the appellant, which had bearing upon her entitlement to improved death pension, should have been made part of the record. It appears that her pension was terminated primarily because of the receipt of a lump-sum workers' compensation award, reportedly $40,000. However, the overpayment currently declared, $14,326, covers the period from May 1989 through June 1992. It reflects the total termination of her pension for the entire period. Income from any source only counts for the 12 month period after receipt. 38 C.F.R. § 3.271(a). It appears that her income from other sources may be below the maximum, however, there is no indication from the record that the RO did the necessary calculations or considered this possibility. The decision by the COW is unclear as to whether the appellant was precluded from waiver because bad faith was found or whether waiver was denied because she failed to meet the standards of equity and good conscience. Both were discussed, although if bad faith is present, consideration under the equity and good conscience standards would be precluded. 38 U.S.C.A. § 5302(c); 38 C.F.R. § 1.965(b). The statement of the case indicates that the request was denied because no "new and material evidence" was received. It does not appear that this is a valid basis, and no pertinent law or regulations are cited. Since additional development and adjudication is required, the case is REMANDED to the RO for the following action: 1. On review of the record it is apparent that the appellant does not understand the legal basis for an award of pension benefits. She has been unable to effectively respond to communications sent to her. Therefore, the RO should schedule a field examination to obtain the necessary financial information. The field examiner should secure and associate with the claims file documentation that reflects the dates of initial receipt and amounts of all income received by the appellant, which had bearing on her entitlement to improved death pension benefits. 2. After the above development has been completed, the RO should recalculate the declared amount of the overpayment, and prepare award actions covering the entire period which take into account any deductible expenses, the annualization rule and the end of the month rule. A full paid and due audit should be prepared. 3. After the amount of the overpayment is recalculated in accordance with the instructions above, the remaining overpayment should be referred to the COW for a clear determination based on the record and any other information the COW finds it necessary to obtain. 4. Thereafter, a supplemental statement of the case should be sent to her and to her representative. The supplemental statement of the case should set forth any evidence added to the record since the May 1993 statement of the case, a clear and complete citation of all legal authority relied upon, the decision, and the bases for the decision. After the supplemental statement of the case is sent, the appellant and her 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 assure full due process to the appellant. No action is required by the appellant until she receives further notice. ROBERT D. PHILIPP 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).