Citation Nr: 0007673	
Decision Date: 03/22/00    Archive Date: 03/28/00

DOCKET NO.  97-10 675	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Entitlement to waiver of recovery of an overpayment of 
improved death pension benefits, including whether the 
overpayment was created in the proper amount.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel


INTRODUCTION

The veteran served on active duty from March 1943 to February 
1947.  He died in November 1985.  The appellant is his 
surviving spouse.  

This is an appeal from an October 1995 decision by the 
Department of Veterans Affairs (VA) Regional Office, 
St. Louis, Missouri, Committee on Waivers and Compromises 
which denied entitlement to waiver of recovery of an 
overpayment of improved death pension benefits for the period 
from February 1992 to August 1996.  The overpayment was 
initially in the amount of $1,498.  The record reflects that 
in December 1996, the appellant made a partial repayment of 
the overpayment in the amount of $918, leaving a balance of 
$580.  The case is now before the Board for appellate 
consideration.

The record further reflects that in December 1996, the 
regional office further reduced the appellant's award of 
improved death pension, effective in February 1993.  This 
action resulted in a separate and distinct overpayment of 
$125.  In January 1997, the regional office advised the 
appellant that she could request a waiver of recovery of that 
overpayment within 180 days.  However, the record does not 
indicate that the appellant has requested waiver of recovery 
of that indebtedness.  That matter is not intertwined with 
the issue before the Board for appellate consideration, and 
cannot be addressed by the Board.


REMAND

The record reflects that the appellant had been in receipt of 
improved death pension benefits as surviving spouse of the 
veteran for a number of years.  Beginning in 1992, her awards 
had been based on her reports that her only income consisted 
of small amounts of interest ranging from $14 to $63 per 
year.

In May 1995, the regional office advised the appellant that 
it proposed to reduce her award, effective in 1992 based on 
additional unreported income for that year.  In August 1995, 
the regional office reduced the appellant's award of improved 
death pension, effective in February 1992 based on the 
additional income.  This action resulted in the overpayment 
in question.

In her request for waiver of recovery of the overpayment in 
September 1995, the appellant submitted a financial status 
report reflecting monthly income of $448 and monthly expenses 
of $563, leaving a negative balance of $115 per month.  She 
reported assets consisting primarily of an individual 
retirement account of $17,000.

In the appellant's substantive appeal in September 1996, she 
indicated that she had permitted individuals to reside in her 
house so that she could repair rotten floors and the roof, 
thereby implying that she received rental income.  She also 
indicated that she had withdrawn $6,000 from her individual 
retirement account for the home repairs, leaving $11,000 in 
the account.

In the statement of the case that was sent to the appellant 
in December 1996, it was indicated that her award of improved 
death pension had been reduced based on rental income.

As matters now stand, the record is unclear as to the nature 
of the income received by the appellant during 1992-1993.  In 
this regard, the Board notes that under the provisions of 
M21-1, Part IV, paragraph 16.41(b)(12), interest from an 
individual retirement account is generally not countable for 
VA purposes if it cannot be withdrawn without incurring a 
substantial penalty.  When the claimant starts drawing down 
the individual retirement account, all payments (interest and 
principal) are countable income.

In view of the aforementioned matters, the case is REMANDED 
to the regional office for the following action:

1.  A VA field examination should be 
conducted for the purpose of determining 
the income from all sources of the 
appellant for the years 1992 and 1993, 
including any interest and rental income 
received during those years as well as 
her current income from all sources, 
assets and monthly expenses.  The 
appellant should be asked to provide 
documentation regarding the amount of her 
income for 1992 and 1993, including any 
Federal or State income tax returns that 
may be available.  The claims file or at 
least a copy of this REMAND should be 
made available to the field examiner for 
review prior to conducting the field 
examination.

2.  The appellant's case should then be 
reviewed by the regional office.  Based 
on the information obtained from the 
field examination, any necessary 
adjustment in the amount of the 
overpayment should be made.  If there 
remains a viable overpayment and if the 
determination regarding waiver of 
recovery of the indebtedness remains 
adverse to the appellant, she and her 
representative should be sent a 
supplemental statement of the case and be 
afforded the appropriate time in which to 
respond.

When the above action has been completed, the case should be 
returned to the Board for further appellate consideration, if 
otherwise in order.  No action required of the appellant 
until she receives further notice.

The purpose of this REMAND is to obtain clarifying 
information.  The Board intimates no opinion as to the 
disposition warranted in this case, pending completion of the 
requested action.



		
	ROBERT D. PHILIPP
	Member, Board of Veterans' Appeals

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) 
(1999).