BVA9501257 
DOCKET NO.  93-08 948     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in New Orleans,
Louisiana

THE ISSUE

Entitlement to a waiver of recovery of an overpayment of death
pension benefits, in the original calculated amount of $12,104.

REPRESENTATION

Appellant represented by: The American Legion

WITNESSES AT HEARING ON APPEAL

The appellant and her sister

ATTORNEY FOR THE BOARD

Daniel J. McTavish, Associate Counsel

INTRODUCTION

The appellant is the widow of the veteran who had active military
service from July 1942 to October 1945, from January 1946 to
January 1948, and again from January 1948 to November 1964.

This matter came before the Board of Veterans' Appeals (Board) on
appeal of an April 1992 determination by the Committee on Waivers
and Compromises (Committee) of the New Orleans, Louisiana
Regional Office (RO) of the Department of Veterans Affairs (VA),
which denied the appellant's request for waiver of recovery of an
overpayment of death pension benefits, in the calculated amount
of $12,104.

REMAND

The overpayment at issue resulted from the retroactive
termination of the appellant's death pension award, effective
February 1, 1989, due to the appellant's failure to report, in a
timely fashion, receipt of a $110,000 payment of insurance
proceeds.  This action resulted in an overpayment in the
calculated amount of $12,104, representing death pension benefits
paid for the period from February 1, 1989, to September 30, 1991.
Initially, the appellant's pension award had been based upon no
countable annual income for the period in question.

In December 1991, VA received the appellant's request for waiver
of recovery of the assessed overpayment along with her request
for a personal hearing.  At the hearing in April 1992, the
appellant testified that she received insurance proceeds as a
beneficiary to her son's life insurance policy.  She reported
that her son, [redacted], died on January [redacted] 1989.  She
invested the money in certificates of deposit in her name and
under her Social Security number.  However, she asserted that the
funds were for her two grandchildren's college education and
really did not belong to her.

The Committee determined that the appellant's failure to report
the insurance proceeds and the interest income from the
certificates of deposit, as well as her continued acceptance of
death pension benefits based upon no income from any source, must
be considered significant fault on her part in the creation of
the debt.  The Committee denied the appellant's claim for
recovery of the assessed overpayment, finding that she was at
fault in the creation of the overpayment and that recovery
thereof would not be against the principles of equity and good
conscience.  It was further determined that to require repayment
of the indebtedness would not subject the appellant to undue
financial hardship.

As indicated above, the appellant received the insurance proceeds
as beneficiary of her son's life insurance policy.  It is unclear
from the evidence of record when the appellant received the
insurance proceeds.  This date is significant in determining
whether the termination date of the appellant's death pension
benefits is correct.  Additionally, we note there is no current
financial status report form (VA Form 4-5655) in the claims file.

We recognize the fact that where, as here, the claim is well
grounded, the VA has a duty to assist claimants in the
development of facts pertinent to their claims.  38 U.S.C.A.
§ 5107(a) (West 1991).  Under the circumstances of this case, we
are of the opinion that additional assistance is required.
Accordingly, further appellate consideration will be deferred and
the case is REMANDED to the RO for the following actions:

1.  The RO should contact the appellant and
request that she provide information as to
the month and year when she received the
insurance proceeds as beneficiary of her
son's life insurance policy.  The RO should
then determine whether the termination
date, February 1, 1989, of her death
pension benefits was correct and should
verify the correct amount of the
overpayment to be charged the appellant.

2.  The appellant should be furnished a
financial status report form and afforded
the opportunity to provide current income
and expense data.

3.  After the development set forth above
has been completed, the RO should again
review her claim for waiver of recovery of
the overpayment under all elements of the
standard of equity and good conscience.

4.  In the event the determination remains
adverse to her, the appellant and her
representative should be furnished a
supplemental statement of the case which
sets forth the pertinent law and
regulations pertaining to her appeal,
including 38 C.F.R. §§ 1.963, 1.965 and
3.660(a)(2) (1993).  They should be given
the opportunity to respond thereto.

Thereafter, the case should be returned to the Board for further
appellate consideration, if otherwise in order, following
appropriate appellate procedure.  The purpose of this REMAND is
to further develop the record and to accord due process

of law and the Board does not intimate any opinion, either
factual or legal, as to the ultimate disposition warranted in
this case.  No action is required of the appellant until she
receives further notice.

          N. R. ROBIN
          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).