Citation Nr: 0002311	
Decision Date: 01/28/00    Archive Date: 02/02/00

DOCKET NO.  98-17 795	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUE

Entitlement to waiver of recovery of overpayment of 
disability pension benefits in the amount of $31,698.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans 
Affairs


ATTORNEY FOR THE BOARD

C. L. Mason, Associate Counsel


INTRODUCTION

The veteran had active service from November 1969 to March 
1971.  This case comes to the Board of Veterans' Appeals 
(Board) on appeal from a May 1998 decision from the Committee 
on Waivers and Compromises (Committee) of the Montgomery, 
Alabama VA Regional Office (RO), which partially granted a 
waiver in the amount of $9,009 and partially denied waiver of 
overpayment of VA pension benefits in the calculated amount 
of $31,703.  Thereafter, the veteran submitted a payment in 
the amount of $5.00, thus reducing the debt to $31,698.


REMAND

The Committee determined that there was bad faith involved in 
the creation of the indebtedness on the basis that the 
veteran did not report his award of Social Security benefits.  
Upon review of the evidence, the Board notes that the 
veteran's Eligibility Verification Reports (EVRs) and/or 
other report of annual income for 1995, 1996, and 1997 are 
not of record.  Accordingly, the case is REMANDED to the RO 
for the following:

The RO denied waiver of recovery on the basis of bad faith.  
The Court has established that this term generally describes 
unfair or deceptive dealing by one who seeks to gain thereby 
at another's expense.  Thus, a debtor's conduct in connection 
with a debt arising from participation in a VA 
benefits/services program exhibits  bad faith if such 
conduct, although not undertaken with actual fraudulent 
intent, is undertaken with intent to seek an unfair 
advantage, with knowledge of the likely consequences, and 
results in a loss to the government.  The Court clearly 
established that there must be intent rather than negligence.  
Richards v. Brown, 9 Vet. App. 255 (1996).

1.  The RO should locate the veteran's 
EVRs or other annual income reports for 
1995, 1996, and 1997 and associate them 
with the claims folder.

2.  The RO should prepare a decision 
that complies with Richards v. Brown, 9 
Vet. App 255 (1999) and document the 
veteran's intent and bad faith.

After the requested development has been accomplished to the 
extent possible, the Committee should again review the 
record.  The Board intimates no opinion as to the ultimate 
outcome of this case.  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.

		
	H. N. SCHWARTZ
	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).