BVA9500625 
DOCKET NO.  93-11 712     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama

THE ISSUE

Entitlement to waiver of recovery of an overpayment of improved
disability pension benefits.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

Hilary L. Goodman, Counsel

REMAND

The veteran had active service from July 1943 to November 1944.
He was awarded pension benefits, effective January 14, 1975, and
began receiving improved disability pension benefits on October
1, 1990.

This appeal arises from a decision of January 1993 by the
Committee on Waivers and Compromises (Committee) located in the
Montgomery, Alabama, Regional Office.

Records reflect that in the January 1993 decision, the Committee
concluded that the veteran was at fault in the creation of the
overpayment.  Fault is an element in considering whether waiver
of recovery of an overpayment should be granted under the
principles of equity and good conscience.  No finding of fraud,
misrepresentation or bad faith was made.  However, in the
statement of the case issued to the veteran, he was advised that
waiver of recovery of the overpayment was denied since he mis-
represented his income.  The reasons for the denial of waiver of
recovery stated in the Committee decision as compared to the
statement of the case are in direct conflict.

It is herein noted that the veteran submitted VA Form 21-22 with
his substantive appeal, appointing The American Legion as his
representative.  The Board of Veterans' Appeals (Board) finds
that a determination on the question of waiver must be deferred
until the veteran, by way of an informative statement of the
case, has been provided with the opportunity to present arguments
and written evidence in support of his claim.  Accordingly, the
claim is REMANDED to the originating agency for the following
action:

1.  The originating agency should request
from the veteran a completed Financial
Status Report (VA Form 4-5655).  The
completed form should be associated with
the veteran's claims file.

2.  Upon completion of the above the
Committee should review the veteran's claim
and, if the decision remains unfavorable to
the veteran, all procedures necessary to
satisfy the requirements of due process
should be completed.  This should include a
supplemental statement of the case which
includes a detailed summary of the
Committee's reasons for its decision as
well as all appropriate laws and
regulations.  The veteran and his
representative, The American Legion, should
be given the appropriate period of time in
which to respond.

The appeal should be returned to the Board for further appellate
consideration, if otherwise in order.  The purpose of this REMAND
is to ensure due process.  No action is required by the veteran
until he receives further notice.

          GARY L. GICK
          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 deter-
mination.  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 action has been taken in
accordance with the Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).