BVA9505685 
DOCKET NO.  93-10 154     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi

THE ISSUE

Entitlement to a waiver of the recovery of an overpayment of
Section 306 disability pension benefits in the calculated amount
of $2,338.

REPRESENTATION

Appellant represented by: Mississippi Veterans Affairs
Board

ATTORNEY FOR THE BOARD

William Harryman, Counsel

INTRODUCTION

The veteran had active service from January 1953 to December
1954.

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 Jackson, Mississippi, in June 1992
which denied his request for waiver of recovery of an overpayment
of disability pension, based on a finding of misrepresentation.

REMAND

As a result of the Board's remand of this case in December 1994,
documentation of the veteran's wife's income for 1989 has been
placed in the record.  According to this documentation, she had
earned income of $8,138 and other income, apparently from
unemployment compensation, of $3,335 during 1989.

The Board notes, however, that despite this additional income,
which had not been previously reported, the RO apparently
determined that the veteran's total income received in 1989 less
allowable exclusions for Section 306 pension purposes did not
result in excessive countable income, inasmuch as his Section 306
award was not terminated effective January 1, 1990, which would
be required pursuant to 38 C.F.R. § 3.660(a)(2) (1994), in the
event that countable income became excessive during 1989.
Rather, since the veteran's award was terminated effective
January 1, 1991, the RO evidently determined that the veteran's
countable income became excessive for Section 306 pension
purposes during 1990.  Review of the award information of record
indicates that this computation of income evidently included the
veteran's Social Security benefits, his wife's Social Security
benefits (which she began to receive during 1990), and his wife's
other income, apparently employment compensation, of $3,335.
Nonetheless, there is nothing in the record showing that the
veteran's wife received income in the amount of $3,335, or any
other income except Social Security benefits, during 1990, such
that this additional amount of income could properly be included
in the computation of the veteran's countable income for purposes
of termination of his award effective from January 1, 1991.  We
would point out that it cannot be assumed that she received this
amount in 1990 merely because she received it the previous year.

Moreover, the Board notes that it does not appear that
consideration was given to the veteran's December 1991 report of
medical expenses of more than $2,700 for calendar year 1991, for
purposes of computing the veteran's countable income and possible
continued entitlement to Section 306 pension for the period
beginning January 1, 1991.

Because the record raises questions regarding the proper
computation of the veteran's countable income and the adjustment
of his Section 306 award for the period in question, the Board
finds that further development and consideration should be
afforded by the RO.  Accordingly, this case is REMANDED to the RO
for the following actions:

1.  The RO should contact the veteran and
request that he provide a clear statement
of his and his wife's income, from whatever
sources, during 1990 and 1991.  If the
information provided by the veteran and/or
his wife raises the need for any related
development to clarify the veteran's family
income during these years, such additional
development should also be undertaken.

2.  The RO should then recalculate the
veteran's countable income for Section 306
pension purposes and determine whether his
income permitted continued entitlement to
Section 306 pension on and after January 1,
1991.  In making these determinations, the
RO should consider the medical expenses
which the veteran reported for calendar
year 1991.  The computations of the
veteran's income and the basis for any
adjustments made to his award should be
clearly reflected in information placed in
the record.

3.  If, after the above actions are
completed, an overpayment remains, the case
should again be referred to the Committee
for consideration of the claim for waiver.
If the determination remains adverse to the
veteran, he and his representative should
be furnished a supplemental statement of
the case and given the opportunity to
respond thereto.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate outcome
of this case.  The veteran need take no action unless otherwise
notified.

          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.

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)