BVA9504605 
DOCKET NO.  92-21 947     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida

THE ISSUE

Whether an overpayment of improved disability pension benefits in
the amount of $4,135 was properly created.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

Robert E. P. Jones, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1946 to December
1947.  This matter came before the Board of Veterans' Appeals
(Board) on appeal from a February 1992 decision of the St.
Petersburg, Florida, Regional Office (RO).  The veteran's claim
was remanded by the Board for further development in May 1994.
It was returned to the Board in January 1995.

In May 1992 the veteran requested a waiver of the overpayment.
The Committee on Waivers and Compromises denied his request in
August 1992.  Later that same month he submitted a notice of
disagreement with the waiver denial.  No statement of the case
has been issued on this question and it thus is not yet properly
developed for appellate review.  The matter requires further
action by the RO.

With regard to the certified issue, the RO has determined that
the veteran received an overpayment of improved disability
pension benefits in the amount of $4,135 over the time period
July 1, 1989 through January 31, 1992.  This overpayment was
created because the veteran did not report interest income and
unemployment compensation benefits received by his wife.  The
veteran supplied evidence that he received $218 in interest
income and that his wife received $1380 in unemployment
compensation in 1989.  The RO then apparently added this income
to the veteran's income for each of the following years of the
time period in question.  In the Board's remand of May 1994 it
was noted that the income used to calculate the declared
overpayment was not documented.  When the RO subsequently wrote
the veteran they only requested verification of the 1989 income.
The veteran furnished documentation which showed that his wife's
unemployment benefits began in
April 1989.  It is unclear when the first check was received, but
there is no basis for concluding that all the income was received
after his pension became effective. Furthermore the documentation
furnished showed that the "available credits" were $1380.  The
veteran was requested to provide financial information for the
entire time period in question in the May 1994 remand and the
subsequent letter from the RO.  The veteran only provided the
record of unemployment compensation benefits received in 1989.
Unemployment benefits do not continue indefinitely, as the RO has
apparently presumed.  The veteran has also furnished interest
income figures for the period in question which vary slightly
from the figures used in calculating the overpayment.

In light of the foregoing, this case is hereby REMANDED to the
agency of original jurisdiction for the following actions:

1.  After obtaining the appropriate
authorization, the RO should contact the
Florida Department of Labor and request a
comprehensive statement of the veteran's
spouse's monthly unemployment compensation
benefits over the time period July 1,1989
through January 31, 1992, showing when the
benefits commenced and when they were
terminated and the total amount received.
All correspondence obtained should be
associated with the veteran's claims file.

2.  The RO should contact the veteran and
request that the veteran provide copies of
records showing all interest income earned
in 1990 and 1991 from any source for him
and his wife.  All copies obtained should
be associated with the veteran's claims
file.  The veteran should be informed that
if he does not provide this information the
1989 figures will be used.

3.  Thereafter, the RO should recalculate
the amount of the overpayment.  The
calculations should accurately reflect
consideration of the documented income
actually received by the veteran and his
wife from all sources during the period of
the declared overpayment.  All calculations
should be made a part of the record.

4.  The RO should then issue the veteran
and his representative a detailed statement
of the case which fully explains how the
overpayment was calculated and they should
be afforded an opportunity to respond.

Should the prior denial be confirmed, the case should then be
returned to the Board.  No action is required of the veteran until
he receives further notice.  The Board intimates no opinion,
either legal or factual, as to the disposition warranted in this
case pending completion of the above actions.

          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) (1993).