BVA9502722 DOCKET NO. 93-05 971 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether creation of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount calculated as $5,189.77 was proper. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from June 1942 to February 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 1992, decision of the St. Petersburg, Florida, Regional Office (RO) of the VA. The notice of disagreement was received in December 1992. The statement of the case was sent to the veteran in February 1993. The substantive appeal was received in February 1993. In addition, the Board finds that the substantive appeal is also a request for entitlement to a waiver of an overpayment of the compensation benefits in the amount of $5,189.77. Therefore, the Board refers the issue of whether the request for waiver was timely to the RO and if so, whether waiver should be granted to the Committee on Waivers and Compromises for appropriate action. REMAND The Board observes that further development is needed in this case prior to adjudication by the Board. In order to clarify what type of development is required, the Board will briefly review the history of the veteran's claim. A review of the claims file reveals that the veteran was originally awarded VA compensation benefits in March 1945. The record further reveals that the veteran has been married and divorced on three occasions. In January 1946, he married Ruby. In March 1961, the veteran and Ruby were divorced. In June 1965, he married Doris and they were subsequently divorced in November 1975. In June 1979, the veteran married Frances and they were subsequently divorced in April 1990. An overpayment was created in this case when the veteran received additional compensation benefits for Doris from whom he was divorced in November 1975. It has been determined by the RO that the veteran did not notify the proper VA authorities of his divorce and subsequent remarriage to Frances until December 1991. In the December 1992 decision, the RO determined that an overpayment was created when the veteran was paid additional VA compensation for a spouse (Doris) which he was not entitled to receive following his divorce from Doris. In addition, it was determined that the veteran was also not entitled to additional VA compensation benefits for Frances since the veteran did not notify the VA of his marriage to her within one year of that marriage and until after their divorce. The Board has considered the history of the veteran's claim as set forth above in conjunction with the veteran's contention that he actually notified the VA of his divorce from Doris and remarriage to Frances many years ago, and finds that it is imperative to his claim that the first date of notification be determined. In a December 1991 letter, the veteran related that he notified a VA representative of his divorce from Doris and remarriage to Frances while he was hospitalized approximately 3 years after his third marriage. In order to verify his contention, the Board has reviewed the records contained in the claims file. A review of the medical records revealed numerous hospitalizations for psychiatric problems between 1977 and 1989. The veteran apparently was hospitalized and/or treated at several facilities including the VA Medical Center in Bath, New York; the Audie Murphy VA Hospital; the VA Hospital in San Antonio, Texas; the James A. Haley VA Hospital in Tampa, Florida; and the VA Medical Center in Bay Pines, Florida. The Board notes that although several hospitalization summaries are of record, the complete clinical records have not been associated with the claims file. In particular, the hospitalization summaries include a July 21, 1982 to August 4, 1982 summary from the VA Medical Center in Bath, New York; an August 17, 1982 to August 24, 1982 summary of the Audie Murphy VA Hospital; a September 1982 summary of the San Antonio VA Hospital; a September 3, 1982 to November 10, 1982 summary of the Audie Murphy VA Hospital; a December 4, 1982 to January 28, 1983 summary of the San Antonio VA Hospital; an April 14, 1983 to April 16, 1983 summary of the James A. Haley VA Hospital; and a May 29, 1990 to June 11, 1990 summary of the VA Medical Center in Bay Pines, Florida. A few of these summaries as well as other treatment reports and a VA examination reflect that the veteran reported details of his marital status during treatment. In particular, the December 4, 1982 to January 28, 1983 San Antonio VA Hospital report revealed that the veteran related that he had been married three times; a November 1983 VA examination reflected that the veteran reported that he had been married to his third wife for three years; and October 1989 to November 1989 records of the Bay Pines VA Medical Center revealed that the veteran was married three times and that his third marriage was pending divorce. In light of the records mentioned above, the Board finds that the RO should obtain the veteran's complete hospitalization, inpatient, and outpatient treatment records as well as the administrative records of the following facilities: the VA Medical Center in Bath, New York; the Audie Murphy VA Hospital; the VA Hospital in San Antonio, Texas; the James A. Haley VA Hospital in Tampa, Florida; and the VA Medical Center in Bay Pines, Florida. The RO should review these records to determine if the veteran, during treatment rendered by the VA, adequately notified the VA of his divorce from Doris and remarriage to Francis, and, if so, the date of the first notification. The RO should also consider the aforementioned documented instances when the veteran indicated that he had three marriages, and/or was divorced from his third wife in their determination of the initial notification. Under the circumstances of this case, additional development is necessary in order to fulfill the VA's duty to assist. Accordingly, this matter is REMANDED for the following action: 1. The RO should obtain and associate with the claims file copies of all administrative and clinical records including inpatient and outpatient treatment records, not just hospital summaries, which are not already in the claims file, of the veteran's treatment at the VA Medical Center in Bath, New York; the Audie Murphy VA Hospital; the VA Hospital in San Antonio, Texas; the James A. Haley VA Hospital in Tampa, Florida; and the VA Medical Center in Bay Pines, Florida. The RO should review these records to determine if the veteran, during treatment rendered by the VA, adequately notified the VA of his divorce from Doris and remarriage to Francis, and, if so, the date of the first notification. In conjunction with that determination, the RO should also consider the treatment records already in the claims file which may serve as notice, specifically: a December 4, 1982 to January 28, 1983 San Antonio VA Hospital report which revealed that the veteran related that he had been married three times; a November 1983 VA examination which reflected that the veteran reported that he had been married to his third wife for three years; and October 1989 to November 1989 records of the Bay Pines VA Medical Center which revealed that the veteran was married three times and that his third marriage was pending divorce. 2. The RO should clearly explain the reasons for the beginning and ending dates as well as the amount of the overpayment and should provide the veteran with an audit reflecting the proper dates and amount. 3. The RO should readjudicate the issue of whether the creation of the overpayment of an overpayment of VA compensation benefits was proper. The period covered for the overpayment, i.e., beginning and ending dates, amount, and the reason for the creation of the overpayment must be set forth separately in the determination. If the action taken 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. No action is required of the veteran until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case pending completion of the requested development. E. M. KRENZER 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).