BVA9503637 DOCKET NO. 93-11 414 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to waiver of an overpayment of disability pension benefits in the calculated amount of $2,620. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had periods of active service from August 1944 to March 1946 and from November 1950 to March 1951. This case came before the Board of Veterans’ Appeals (Board) on appeal from a decision of the Committee on Waivers and Compromises (Committee) of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, in September 1992 which denied the veteran's request for waiver of recovery of the overpayment of pension benefits. That decision was premised on a finding that recovery would not violate the standard of equity and good conscience. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that, in light of his limited income and greater expenses, it would be inequitable to recoup the overpayment caused by his inadvertent failure to report his wife’s Social Security income. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that consideration of equity and good conscience warrants a waiver of the recovery of an overpayment of VA disability pension benefits. FINDING OF FACT Collection of the overpayment of disability pension benefits in the calculated amount of $2,620 would cause undue financial hardship and defeat the purpose for which the benefit was intended. CONCLUSION OF LAW Recovery of the overpayment of disability pension benefits would be against equity and good conscience. 38 U.S.C.A. §§ 5107, 5302 (West 1991); 38 C.F.R. § 1.963(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Some of the basic facts are not in dispute. The case was referred to the Committee in August 1992 because the veteran had been charged with an overpayment of VA disability pension benefits in the calculated amount of $2,620. This overpayment resulted from the veteran’s failure to report his wife's award of Social Security monthly disability benefits. The RO became aware of the additional income in March 1992, when the veteran submitted an Improved Pension Eligibility Verification Form (EVR), on which he listed monthly income for his wife of $243 from the Social Security Administration. The veteran was promptly notified that his pension benefits had been suspended. Communication received from the Social Security Administration confirmed the veteran’s wife’s award, effective in March 1991. The RO retroactively terminated the award of disability pension benefits due to excessive income, effective from May 1, 1991. An additional EVR and a Financial Status Report were submitted by the veteran in June and August 1992, also reflecting the Social Security income. When it has been determined that there was no willful intention on the part of the veteran to commit fraud, misrepresent a material fact, or exercise bad faith in the creation of an overpayment that has been assessed against him, as is the case here, the recovery of that overpayment may be waived if the evidence establishes that the recoupment of the indebtedness would be against equity and good conscience. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.963(a). It is the veteran’s principal argument that failure to waive the recovery of the overpayment in question would result in financial hardship. In support of this argument, he provided a Financial Status Report in August 1992. In that report, the veteran listed modest monthly expenses which exceeded his monthly income (including his wife’s Social Security award payments) by more than $200. Moreover, the veteran has little in the way of liquid assets. Considering such financial circumstances, the Board is of the opinion that it would be against equity and good conscience to require the veteran to repay the assessed overpayment. Although the Board believes that the veteran knew or should have known that his failure to immediately report receipt of his wife’s Social Security benefits would result in an incorrect award of pension benefits, that failure in and of itself does not preclude a waiver, when balanced against other equitable factors . The Board does not believe that the veteran was unjustly enriched, when considering his limited income and precarious financial status. Furthermore, the Board believes that the purpose for which pension benefits are intended would be nullified if the veteran were required to repay his indebtedness. Thus, giving the veteran the benefit of the doubt, waiver of the recovery of the indebtedness is warranted. The Board has also considered the arguments advanced by the veteran in his substantive appeal and by his representative to the effect that he is willing and able to repay the indebtedness by subtracting $75 from his VA pension benefit check each month, thus offering to compromise the debt. Unfortunately, this argument is inapt, since his VA pension benefits have been terminated due to excessive income: he is not currently entitled to any monthly pension benefit. However, as indicated above, the Board has herein waived recovery of the entire overpayment. ORDER Waiver of recovery of an overpayment of disability pension benefits in the calculated amount of $2,620 is granted. 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. However, considering the veteran’s failure to report the added income for prompt action in terminating his pension award, the balancing of faults does wei