BVA9505691 
DOCKET NO.  93-11 148     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Indianapolis,
Indiana

THE ISSUE

Entitlement to waiver of recovery of an overpayment of
compensation benefits effective from October 1, 1989.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Susan S. Toth, Associate Counsel

REMAND

The veteran had active service as follows:  January 1946 to
January 1949, February 1949 to September 1952, December 1952 to
September 1956, December 1956 to May 1962 and June 1962 to
November 1966.

The veteran submitted a statement in April 1992, wherein he
requested waiver of recovery of the debt and, in effect, claimed
sole VA error was responsible for creation of the indebtedness.
In May 1992, the Regional Office's Committee on Waivers and
Compromises (RO) issued an administrative decision whereby it was
determined that waiver of recovery was not warranted.  However,
the RO failed to address whether the debt was properly created.
The VA has the obligation to make a determination on the validity
of a debt before considering whether recovery of that debt may be
waived.  See Schaper v. Derwinski, 1 Vet.App. 430 (1991).
Moreover, it is noted that the original amount of the overpayment
was $18,869; however, according to a supplemental statement of
the case dated in January 1993, the amount of the overpayment was
increased by $5,982 to cover the period from October 1989 through
March 1990.  It appears that the circumstances leading up to this
portion of the overpayment were different than those leading up
to the original overpayment.  Accordingly, the RO must address
the question of sole VA error for both overpayments before
addressing the principles of equity and good conscience.

Under the circumstances of this case, the Board finds that
additional assistance is required.  Accordingly, the case is
REMANDED to the RO for the following:

1.  The RO should perform an audit of the
veteran's compensation account, for the
entire overpayment period.  The audit must
include the monthly amounts of compensation
and military retirement actually paid to
the veteran, and the amount of payment due
each month.  Once compiled, the audit
report must be associated with the claims
folders, and a copy must be sent to the
veteran.

2.  The RO should then adjudicate the issue
of whether the overpayment was properly
created to specifically include the
question of whether the overpayment in
question, either in toto or a portion
thereof, was the result of sole VA error.

3.  If the RO determined that the debt was
properly created, the veteran should be
requested to complete a contemporaneous
financial status report.

4.  The RO should then adjudicate anew the
issue of whether or not recovery of the
overpayment should be waived based on the
principles of equity and good conscience.
Should the decision remain adverse to the
veteran, a supplemental statement of the
case should be prepared, which addresses
both the issue of creation of the
indebtedness together with waiver of
recovery thereof, and furnished to him and
to his representative.  They should then be
given an opportunity to respond.

Thereafter, the case should be returned to the Board in
accordance with current appellate procedures.  The appellant need
take no action unless he is further informed.  The purpose of
this REMAND is to obtain additional information, and no inference
should be drawn regarding the final outcome of this claim as a
result of this action.

          C. W. SYMANSKI
          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).