BVA9504633 DOCKET NO. 93-12 318 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to waiver of recovery of an overpayment of disability compensation benefits, to include the question of whether this overpayment, originally calculated as $3,313, has been properly created and assessed against the veteran. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Anna Bryant, Counsel INTRODUCTION The veteran had active military service from November 1953 to October 1957, and from December 1957 to August 1975. This appeal arises from a May 1992 determination of the Committee on Waivers and Compromises (Committee) of the Albuquerque, New Mexico Regional Office (RO), which denied the veteran's claim seeking entitlement to waiver of recovery of an overpayment of disability compensation benefits. REMAND Review of the evidentiary record in this case reflects that the overpayment of disability compensation benefits, currently calculated to be $3,313, resulted from the retroactive reduction of the veteran's compensation award, after it was learned by the RO that the veteran had failed to report, in a timely fashion, that he was divorced in May 1985. In September 1991, the veteran returned a Department of Veterans Affairs (VA) Status Of Dependents Questionnaire (VA Form 21-0538). The evidentiary data indicated that the veteran was unmarried and had no dependent children. As a result of this information, in March 1992, the veteran's compensation award was adjusted, effective May 1, 1983, the date his spouse was added to his award, to reflect removal of a spousal allowance. This action resulted in the creation of an overpayment in the calculated amount of $3,313. An audit of the veteran's compensation account in March 1992 indicated an overpayment in the calculated amount of $3,313, representing benefits overpaid effective from May 1, 1983. In May 1992, the Committee determined that, while the veteran was free of fraud, misrepresentation, or bad faith in the creation of the assessed overpayment, he was at fault and that, waiver thereof was not warranted as undue financial hardship had not been shown. The claim for waiver was thus denied on the basis that recovery would not be against equity and good conscience. The Board further notes that a copy of the veteran's divorce decree was received by the RO later in May 1992 which reflected that the veteran was divorced in May 1985. In July 1992 award action was taken by the RO to reinstate additional compensation benefits for a spouse effective for the period from May 1, 1983 through the end of May 1985. The effect of this award adjustment was to reduce the amount of the overpayment charged to the veteran, although the current record does not reflect the recalculation of the overpayment amount subsequent to the July 1992 award adjustment. Moreover, the amount shown as considered by the Committee in October 1992 was the original overpayment amount. Accordingly, the proper amount of the overpayment should be verified and should then be referred to the Committee for waiver consideration. The VA has a statutory duty to assist a veteran in the development of facts pertinent to his well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (1993). Under the circumstances of this case, the Board concludes that additional development is required prior to appellate review. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following actions: 1. The RO should verify the amount and period of the overpayment by setting forth in the evidentiary record a month-by-month accounting of the amount of benefits due and paid the veteran for period in question. 2. The veteran should be given an opportunity to complete and submit a current Financial Status Report, (VA Form 4-5655), in the event that there has been any significant change in his financial status from that previously reported. 3. Thereafter, once the amount of the overpayment has been clarified, that amount should be referred to the Committee for consideration of the veteran's request for waiver. Consideration should be given to all elements of the standard of equity and good conscience. A formal, written record of the Committee's decision should be prepared and incorporated into the claims folder. 4. If the Committee's determination remains unfavorable to the veteran, he and his representative should be furnished a supplemental statement of the case in accordance with 38 C.F.R. § 7105 (West 1991). This document should further reflect detailed reasons and bases for the decision reached. It should contain a citation to the various equitable elements set forth at 38 C.F.R. § 1.965(a) (1993). When the above development has been completed, the veteran and his representative should be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if otherwise in order, following appropriate appellate procedure. The purpose of the REMAND is to further develop the record and to ensure due process, 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 veteran until he receives further notice. D. C. SPICKLER 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. (CONTINUED ON NEXT PAGE) 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) (1994).