Citation Nr: 0003283	
Decision Date: 02/09/00    Archive Date: 02/15/00

DOCKET NO.  98-06 214	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

Whether the appellant's request for a waiver of recovery of 
an overpayment of improved death pension benefits was timely 
submitted.  


WITNESSES AT HEARING ON APPEAL

The appellant and the appellant's daughter


ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel


INTRODUCTION

The veteran served on active duty from October 1952 to 
October 1954.  He died in October 1978.  The appellant is his 
surviving spouse.  

In June 1994, the Department of Veterans Affairs (VA) 
Regional Office, Cleveland, Ohio, terminated the appellant's 
award of improved death pension effective in August 1993 due 
to excess income consisting of Social Security benefits.  
This action resulted in an overpayment in her account.  In 
October 1997, the appellant submitted a request for waiver of 
recovery of the indebtedness.  In January 1998, the Regional 
Office Committee on Waivers and Compromises held that the 
request had not been timely submitted and therefore could not 
be considered on its merits.  The appellant appealed from 
that decision.  The case is now before the Board for 
appellate consideration.  


REMAND

The record reflects that the appellant had been in receipt of 
improved death pension benefits as surviving spouse of the 
veteran.  Her awards had been based on her reports of having 
no income from any source.  

In June 1994, the regional office terminated the appellant's 
award of improved death pension, effective in August 1993 due 
to excess income consisting of Social Security benefits.  
This action resulted in an overpayment of $4,306 in her 
account.  

In October 1997, the appellant submitted a request for waiver 
of recovery of the indebtedness. 

In January 1998, the Regional Office Committee on Waivers and 
Compromises held that the request had not been timely 
submitted.  It was indicated that records reflected that the 
appellant had been notified of the overpayment and her waiver 
rights on July 17, 1994.  

During the May 1998 hearing on appeal, the appellant stated 
that she did not recall ever receiving a letter from the 
finance department telling her that she had an overpayment 
and that she had to repay it.  Her daughter became aware of 
the debt in the fall of 1997 and, at that time, she 
immediately took action to file for a waiver of recovery of 
the overpayment.  

The Board notes that the July 17, 1994, notice of the 
overpayment and waiver rights referred to in the January 1998 
decision by the Committee on Waivers and Compromises is not 
included in the claims file, and there is no other 
documentation which would confirm that it was sent.  Thus, 
the current record does not reflect that the appellant was 
advised of the amount of the overpayment and of the time 
limit for requesting a waiver of recovery of the 
indebtedness.  

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

1.  The regional office should obtain a 
copy of the July 17, 1994, remand letter 
or the computer print-out which shows 
when the various letters were sent.  That 
documentation should be added to the 
claims file.  In the alternative, the 
regional office may obtain verification 
from the Debt Management Center (DMC) of 
the date on which the initial notice of 
indebtedness and the right to request 
waiver were dispatched by the DMC to the 
debtor in accordance with the provisions 
of Office of Financial Policy Bulletin 
99.GC1.04, dated May 14, 1999.  The 
verification should be in the form of a 
signed, written certification from the 
DMC management identifying the date of 
dispatch of the notice.  

2.  The appellant's claim should then be 
reviewed by the regional office.  If the 
denial is continued, the appellant 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 is required of the appellant 
unless 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).