Citation Nr: 0003611 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 94-04 751 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Committee on Waivers and Compromises of the Regional Office in New York, New York THE ISSUE Entitlement to a waiver of recovery of an overpayment of Section 306 pension benefits in the amount of $4232. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from January 1943 to October 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1993 decision by the Committee on Waivers and Compromises (Committee) of the of the New York, New York, Regional Office (RO) of the VA. In January 1996, the Board remanded this case for further development. REMAND In the recent case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In light of the foregoing, this case must be remanded again for the actions set forth below. Historically, in July 1993, the Committee considered the request for waiver, but made a specific determination that there was fraud on the veteran's part with respect to the creation of the overpayment at issue which precluded waiver pursuant to 38 U.S.C.A. 5302(a) (West 1991). In the decision, it appears that the Committee partially considered the elements that assist in defining "equity and good conscience." However, it was indicated that financial hardship was not a factor due to the finding of fraud and due to the veteran's fault in the creation of the debt at issue. The Board notes that since fraud was found, none of the elements of equity and good conscience should have been considered. If fraud had not been found, then all of the elements of equity and good conscience should have been considered. In the notification letter, the Committee also indicated that the Committee had carefully considered all the elements that assist in defining "equity and good conscience." In any event, the Board observes that fraud was found be the Committee and that finding precluded waiver. The Committee improperly considered what appeared to be some of the elements of equity and good conscience. In the January 1996 decision, the Board determined that there was no showing of fraud, misrepresentation, or bad faith on the veteran's part with respect to the creation of the overpayment at issue, and, thus, waiver is not precluded by law. 38 U.S.C.A. § 5302(a) (West 1991). As such, the Board remanded this matter to the RO to procure from the veteran and his spouse a complete and current financial status report. Thereafter, this case was to be sent to the Committee for adjudication of the veteran claim for entitlement to a waiver of recovery of an overpayment of Section 306 pension benefits in the amount of $4232 under all the elements of the standard of equity and good conscience. The Board notes that although financial information of the veteran was of record (a VA Form 4-5655 dated in October 1992), the Board sought the current financial status report due to the veteran's contentions that his financial picture had changed for the worse. In conjunction with the Board's remand portion of the January 1996 decision, the RO notified the veteran in March 1996 that he should submit a current financial status report, but the veteran failed to reply. Thereafter, this matter was not returned the Committee for adjudication under the standard of equity and good conscience taking into consideration the evidence of record to include financial evidence already of record; rather, the RO issued a supplemental statement of the case which indicated that no further evidence had been added to the claims file which would warrant or change the prior Committee decision. This action did not comply with the Board's remand instructions which indicated that the case was to be returned to the Committee for adjudication under the standard of equity and good conscience since the Board had determined that there was no showing of fraud, misrepresentation, or bad faith on the veteran's part with respect to the creation of the overpayment at issue. The Board notes that pursuant to Stegall, this case must be returned to the Committee for adjudication under the standard of equity and good conscience taking into consideration the evidence of record to include financial evidence already of record. All of the elements of equity and good conscience should be addressed. Inasmuch as this case is being remanded for this action, the Board finds that a final attempt should be made to obtain a complete and current financial status report, but the veteran should be advised that if he fails to provide this information, his claim will be adjudicated based on the evidence already of record. Accordingly, this matter is Remanded for the following action: 1. The veteran and his spouse should be asked to provide a complete and current financial status report. He should be advised that if he fails to provide this information, his claim will be adjudicated based on the evidence already of record. 2. The Committee should adjudicate the veteran's claim for entitlement to a waiver of recovery of an overpayment of Section 306 pension benefits in the amount of $4232 taking into consideration all the elements of the standard of equity and good conscience. Consideration should be given to the fault of the debtor in the creation of the debt and any fault is to be weighed against possible fault of the VA. Also taken into consideration is whether collection would create an undue hardship for the debtor; whether collection would defeat the purpose of the benefit; whether failure to collect would cause unjust enrichment to the debtor; and if reliance on VA benefits resulted in relinquishment of another valuable right. This list represents some of the elements to be considered and is not all inclusive. 38 U.S.C.A. § 5302 (West 1991); 38 C.F.R. § 1.965(a) (1999). If the determination is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations . He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. The veteran need take no action until he is further informed, but he may furnish additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C.W. Symanski Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).