BVA9508027 
DOCKET NO.  92-02 956     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico

THE ISSUE

Entitlement to waiver of recovery of an overpayment of improved
pension benefits in the calculated amount of $2,100.

ATTORNEY FOR THE BOARD

Daniel J. McTavish, Associate Counsel

INTRODUCTION

The veteran is the appellant in this case.  He had active
military service from April 1944 to February 1946.

This case came before the Board of Veterans' Appeals (Board) on
appeal from the February 1991 decision of the Committee on
Waivers and Compromises (Committee) of the San Juan, Puerto Rico
Regional Office (RO), which denied the appellant's claim for
waiver of recovery of indebtedness arising from an overpayment of
Department of Veterans Affairs (VA) improved pension benefits.
The Committee found that "bad faith" on the appellant's part
resulted in the creation of the overpayment in question, and that
recovery of the indebtedness from the appellant would not be
against equity and good conscience.

The Board remanded the case to the RO in December 1992 and
requested the Committee to clarify the basis for its denial of
the benefit sought on appeal.  In September 1993, the Committee
submitted a supplemental statement of the case clarifying that
the determination had been that there was no finding of fraud,
misrepresentation or bad faith in the creation of the
overpayment.  The appellant's request for a waiver of recovery of
the overpayment was denied on the basis that recovery would not
be against the standard of equity and good conscience.

In view of the Committee's finding that there was no willful
intention on the part of the appellant to commit fraud,
misrepresent a material fact, or exercise bad faith in the
creation of the overpayment, the Board's review is thus limited
to the issue of whether the evidence establishes that recovery of
the indebtedness would be against equity and good conscience.

REMAND

The overpayment at issue was created due to the retroactive
termination of the veteran's improved pension award because of
excessive income resulting from his wife's receipt of Social
Security benefits.  The award was terminated effective March 1,
1988, apparently based upon the RO's finding that the veteran's
wife began to receive Social Security benefits in February 1988.
However, in reviewing the record, the Board notes that there is
some ambiguity as to when the veteran's wife actually began to
receive Social Security benefits.  While Social Security data in
the file show that she became entitled to benefits in January
1988, the available information does not document when she first
received such benefits.  In August 1993, the veteran reported
that he started to receive Social Security benefits in January
1989.  This reference is somewhat confusing since all of his
other reports show that he had been receiving Social Security
benefits since prior to his claim for pension in 1985.  From the
context of his August 1993 statement, it is possible that he may
have been referring to the beginning date of his wife's receipt
of Social Security benefits, although this is not clear.

In any event, clarifying information regarding the veteran's
wife's Social Security award should be obtained.  In addition, in
view of the veteran's August 1993 statement regarding the amount
of the overpayment at issue, he should be furnished a paid and
due audit which reflects the amount of the overpayment.

To ensure that the VA has met its duty to assist the veteran in
developing the facts pertinent to the claim and to ensure full
compliance with due process requirements, the case is REMANDED to
the RO for the following development:

1.  The RO should obtain from the Social
Security Administration (SSA) specific
information showing when the veteran's wife
first received Social Security benefits.
If possible, a copy of her original Social
Security award notice should be obtained,
either from her or from SSA.

2.  Once this information is obtained, the
RO should make any needed adjustments to
the veteran's pension award in the event
that his wife's initial Social Security
check was received at a time other than
March 1988.

3.  The correct amount of the overpayment
should then be verified.  The veteran
should be furnished a paid and due audit
showing the monthly amounts of pension paid
and the monthly amounts actually due during
the period of the overpayment.  This
information should also be placed in the
record.

4.  Thereafter, the Committee should again
review the claim for waiver.  The veteran
should be provided the opportunity to
submit an up-to-date Financial Status
Report for review by the Committee.  Full
consideration should be given to the
various elements of the standard of equity
and good conscience.

If the determination remains adverse to the veteran, he should be
furnished a supplemental statement of the case and given the
opportunity to respond thereto.  The case should then be returned
to the Board, if in order.  The Board intimates no opinion as to
the ultimate outcome of this case.  The veteran need take no
action unless otherwise notified.

          D. C. SPICKLER
          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).