BVA9502724 
DOCKET NO.  92-15 744     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Seattle,
Washington

THE ISSUE

Entitlement to a waiver of recovery of overpayment of
compensation benefits in the calculated amount of $2,580.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Robert E. P. Jones, Associate Counsel

INTRODUCTION

The veteran served on active duty from February 1945 to October
1945.  This matter came before the Board of Veterans' Appeals
(Board) on appeal from a March 1992 decision of the Committee on
Waivers and Compromises (the Committee) at the Department of
Veterans Affairs (VA) Regional Office (RO), Seattle, Washington.
The veteran's claim was remanded to the RO for further
development in April 1994.  The overpayment is in the declared
amount of $2,580.  The veteran has not questioned the amount of
the overpayment and it is not an appellate issue.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he should be awarded a waiver of
repayment of his overpayment of $2,580.  The veteran asserts that
he is 100 percent disabled due to a psychiatric disorder.  He
further asserts that he was not living with his wife at the time
he was awarded increased benefits for having a wife as a
dependent.  The veteran avers that his VA check and other VA
correspondence went to his wife's address and not to him until
1985.  He asserts that he never received the letters which stated
that he must promptly notify the VA of any change in marital
status.  The veteran contends that since the overpayment was not
caused by any fault of his, repayment should be waived.

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
veteran's claim for waiver of recovery of an overpayment of
disability compensation benefits.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained.

2.  The veteran's failure to timely report his divorce from his
spouse resulted in the creation of an overpayment; failure to
make restitution would result in an unfair gain, and collection
of the indebtedness would not deprive the veteran of basic
necessities.

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 veteran seeks a waiver of recovery of an overpayment of
disability compensation benefits.  The Board finds that the
veteran's claim is "well grounded" within the meaning of
38 U.S.C.A. § 5107(a).  That is, the veteran has presented a
claim which is plausible.  The Board is satisfied that all
relevant facts have been properly developed and that no further
assistance to the veteran is required to comply with the duty to
assist mandated by 38 U.S.C.A. § 5107(a).

The veteran was released from active service in October 1945.
The veteran was awarded a 10 percent disability rating for
schizophrenia effective on separation.  His disability rating for
his psychiatric disorder was reduced to noncompensable in a March
1948 rating action.  He was awarded a 100 percent disability
rating for manic depression in a September 1978 rating decision.
His award included an additional dependency benefit for a wife
and two children.

The RO sent an award letter to the veteran in July 1983.  This
letter stated that the veteran's award included additional
benefits for a spouse and child.  This letter also stated that
the veteran was required to promptly notify the VA of any change
in the number or status of any of his dependents.  Another award
letter stating that the veteran was required to promptly notify
the VA of any change in the number or status of any of his
dependents was sent to the veteran in August 1983.

In July 1991, a Social Security Number Solicitation form was sent
to the veteran.  The veteran returned the form indicating that he
had been divorced from his wife for over two years.  He
subsequently stated the divorce had occurred in April 1989.  The
veteran was informed that he had received an overpayment in the
amount of $2580.  A request for waiver of overpayment was
received from the veteran's representative in October 1991.

In October 1991, the VA sent the veteran a Financial Status
Report for information concerning his current monthly income and
expenses.  The veteran failed to return the report to the VA.  In
a November 1991 decision, the Committee determined that there was
some fault on the part of the veteran in the creation of the
overpayment and that the evidence of record did not reveal that
recovery of the debt would cause the veteran hardship.  The
Committee denied the veteran's request for a waiver.

In the veteran's substantive appeal of March 1992 the veteran
asserted that he was not at fault in creating the overpayment.
He stated that he separated from his wife in 1980.  Due to his
service connected psychiatric disability, he allowed his wife to
take care of all VA correspondence.  She received the disability
checks and gave him a portion of them.  The veteran asserts that
he never saw the correspondence which increased his benefits due
to his wife being a dependent.  Nor did he see the letter of
August 1983 which also stated that it was the veteran's
responsibility to promptly notify the VA of any change in the
number or status of his dependents.  The veteran maintains that
it was not until 1985 that he asked the VA to send his checks and
correspondence to his real address.  The veteran contends that
since he did not personally receive any notice that he should
inform the VA of any change in his marital status prior to 1985,
he should not be found to be at fault in the creation of the
overpayment.

The question to be resolved 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 veteran contributed to the
creation of the debt, a weighing of the fault on the part of the
veteran against any VA fault, whether collection would deprive
the veteran 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
veteran, 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.

The veteran thinks that he should be granted a waiver because it
was not his fault that the indebtedness was created.  As noted
above, fault is only one of the criteria to be considered in
determining the appropriateness of a waiver.  Accepting the
veteran's statement as fully correct it appears that he does have
minimal fault.  However, the Board notes that there was some
fault on the veteran's part as he should have arranged to receive
the VA correspondence that was addressed to him.  Clearly, there
was no fault on the part of the VA.

In considering the other factors, the Board notes that in June
1994 the veteran reported that his gross monthly and net monthly
income were identical, $3193.  This included $486 of retirement
income, $963 of Social Security income, and $1744 of VA
compensation benefits.

The veteran calculated his household total monthly expenses to be
$1620.  The monthly expenses were reported as: $400 for rent or
mortgage, $200 for food, $70 for utilities and heat, $200 for
clothing, $150 for medical expenses, and $600 for alimony.

The figures supplied by the veteran provide a monthly surplus of
net income over necessary expenses of $1573.  The veteran also
reported having $10,000 in the bank and owning an automobile
valued at $10,000.  He reported no outstanding debts.

The Board concludes that recovery of the overpayment would not
deprive the veteran of basic necessities.  It clearly would not
cause him any hardship since it could be taken out of his
significant cash reserve and still leave a considerable sum.  The
veteran has a substantial monthly surplus after payment of all
monthly necessities and a substantial amount of money in the
bank.  In addition, failure to make restitution would result in
unfair gain to the veteran.  There has been no relinquishment of
any right or incurrence of any obligation and recovery would not
affect the purpose of the compensation benefit.  Accordingly, it
is the judgment of the Board, after full consideration, that the
recovery of the overpayment would be consistent with the
standards of equity and good conscience.  38 U.S.C.A. § 5302; 38
C.F.R. §§ 1.963, 1.965.  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 waiver of recovery of an overpayment of disability
compensation benefits is denied.

          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.

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.