Citation Nr: 0005851 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 98-15 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to waiver of recovery of an overpayment of improved disability pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel REMAND The veteran had active service from October 1942 to November 1945. This appeal arises from a decision of June 1998 by the Committee on Waivers and Compromises (Committee) located in the Department of Veterans Affairs (VA) Muskogee, Oklahoma, Regional Office (RO). The veteran was initially awarded VA improved disability pension benefits, effective July 1, 1992; his only countable income was reported to be his Social Security benefits. Records show that in March 1998, the RO reduced the veteran's monthly payment of improved disability pension benefits, effective July 1, 1992, after determining that the veteran's spouse and child had been receiving Social Security benefits since 1986. However, in an October 1997 report of contact it was indicated that the veteran had reported that his spouse began receiving Social Security benefits about three years previously, when she turned sixty-five. An overpayment of $20,515, covering the period from July 1, 1992, the date the veteran began receiving VA improved disability pension benefits, was declared. In the veteran's May 1993 application for VA pension benefits, it was reported that his spouse was receiving $268 monthly in Supplemental Security Income (SSI) and that his son was receiving $360 monthly in SSI. What can not be determined from the current record is when the veteran's spouse and child began receiving SSI and when they began receiving Social Security benefits, the latter of which is countable income for VA improved pension purposes. Since overpayments based on income must be calculated on the basis of annualization of income for the 12 months following the first month of actual receipt of the latter income, it is essential that the month and year the veteran's spouse and child actually began receiving Social Security benefits, exclusive of SSI, must be established. In the judgment of the Board of Veterans' Appeals (Board), further development to clarify this matter, further award computations and audits and further action by the Committee is required before this matter is ripe for appellate review. Accordingly, the claim is REMANDED to the originating agency for the following action: 1. The originating agency should obtain directly from the Social Security Administration written information as to when the initial Social Security benefit check, including any retroactive payment, was issued to the veteran's spouse and son. The total paid to the veteran's spouse and son, broken down by month of payment, from July 1, 1992, through March 1998, including the amount of the payments broken down as to Social Security and SSI, and any deductions taken for Medicare, should be set out. 2. After the information is obtained from the Social Security Administration, the originating agency should make any needed adjustments to the amount of the overpayment, in accordance with the governing regulations. With respect to the remaining overpayment, the veteran should be furnished with a comprehensive statement explaining the basis for the period, and the amount of overpayment as calculated. 3. Thereafter, the matter should be referred back to the Committee. The Committee should secure a new financial status report from the veteran, and re- adjudicate the appellate issue of whether the veteran is entitled to a waiver of recovery of the overpayment. The decision should discuss all the elements of equity and good conscience. If the determination is unfavorable to the veteran, a supplemental statement of the case, which is consistent with the Committee's decision, should be sent to the veteran and his representative. The supplemental statement of the case should set forth all evidence added to the record since the statement of the case; the legal authority relied upon, including the criteria set out in 38 C.F.R. § 1.965(a) (1999); the decision; and comprehensive summary of the Committee's basis for the decision. After the veteran and his representative have been 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 secure clarifying information and ensure dure process. No action is required by the veteran until he receives further notice. The veteran has the right to submit 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). 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. RENÉE M. PELLETIER 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).