Citation Nr: 0004841 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 94-21 870A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to waiver of recovery of an overpayment of death pension benefits in the amount of $6,733. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran had active service from June 1967 to June 1969 and from October 1974 to September 1983. The veteran died in June 1987, and the appellant is his widow. This appeal arises from a November 1993 decision of the Committee on Waivers and Compromises of the Roanoke, Virginia RO. This case was before the Board in January 1998 when it was remanded for additional development. In a November 1997 informal hearing presentation, the appellant's representative raised the issue of entitlement to service connection for the cause of the veteran's death. In a January 1998 Remand, the Board referred this issue to the RO for appropriate action. Because the RO still has not adjudicated this issue, it is again referred to the RO for appropriate action. FINDINGS OF FACT 1. By letter dated in June 1992, the appellant was notified that she had been awarded VA death pension benefits from February 1992, on the basis that her countable family income did not exceed the maximum annual limit, and was informed that the rate of pension depended on family income. She was also advised that any changes in income or dependents must be promptly reported to VA and that all income from all sources must be reported. 2. By letter dated in July 1993, the appellant was informed that her VA death pension benefits were terminated effective from February 1992. She was advised that VA had received an Eligibility Verification Report (EVR) from her, which showed that she had earned $10,924.81 and that this income had not changed or increased within the past 12 months; she was further advised that this was indicative that she was in receipt of such income when she applied for VA death pension benefits in January 1992. This retroactive termination created an overpayment of $6,680. 3. In August 1993, another EVR was received from the appellant wherein she reported that her income from January 1992 to January 1993 was $10,924, and her income from February 1993 to January 1994 was $4,469.91. 4. In August 1993, a financial status report (FSR) was received from the appellant wherein she reported that she was currently earning $978.02 in gross wages per month, but that this amount was variable based on whether overtime was available. She also reported that her expenses exceeded her income each month. 5. By letter dated in September 1993, the appellant was advised that her VA death pension benefits were reinstated effective from February 1, 1993. 6. The VA had significant information associated with the record demonstrating that when the appellant's death pension benefits were reinstated, she had excessive income for VA death pension purposes. The VA failed to act on this information in a timely manner. 7. By letter dated in October 1993, the appellant was notified that her VA death pension benefits had been terminated effective from February 1, 1993, based on the August 1993 FSR. She was advised that this action increased the amount of her overpayment to $6,733. 8. There is no indication in the record that the appellant committed any act of commission or omission in relation to the circumstances in which the additional overpayment of $53 was created. The additional overpayment of death pension benefits in the amount of $53 was the result of sole administrative error. CONCLUSION OF LAW The additional overpayment of death pension benefits in the amount of $53 was based solely on administrative error on the part of VA; therefore the overpayment in the amount of $53 was not properly created. 38 U.S.C.A. §§ 5107, 5302 (West 1991); 38 C.F.R. § 3.500 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A review of the file indicates that the appellant was in receipt of VA death pension benefits from February 1992, on the basis that her countable family income did not exceed the maximum annual limit. By letter dated in July 1993, the appellant was informed that her VA death pension benefits were terminated effective from February 1992. She was advised that VA had received an EVR from her, which showed that she had earned $10,924.81 and that this income had not changed or increased within the past 12 months. The appellant was further advised that these facts indicated that she was in receipt of this income when she applied for VA death pension benefits in January 1992. The retroactive termination of her VA death pension benefits created an overpayment of $6,680. In August 1993, the RO received another EVR from the appellant, wherein she reported that her income from January 1992 to January 1993 was $10,924, and her income from February 1993 to January 1994 was $4,469.91. Also in August 1993, the RO received a financial status report (FSR) from the appellant, wherein she reported that she was currently earning $978.02 in gross wages per month, but that this amount was variable based on whether overtime was available. She also reported that her expenses exceeded her income each month. The RO failed to act on the above information. By letter dated in September 1993, the appellant was advised that her VA death pension benefits were reinstated effective from February 1, 1993. By letter dated in October 1993, the appellant was notified that her VA death pension benefits had been terminated effective from February 1, 1993, based on the August 1993 FSR. She was advised that this action increased the amount of her overpayment to $6,733. The Board will first address the issue of whether the additional overpayment of $53 was properly created. In order to determine that the overpayment was not properly created, it must be established that the appellant was legally entitled to the benefits in question, or if there was no legal entitlement, then it must be shown that the VA was solely responsible for the veteran being erroneously paid benefits. Sole administrative error connotes that the appellant neither had knowledge of nor should have been aware of the erroneous award. Furthermore, neither the appellant's actions nor her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C.A. § 5112(b)(9)(10) (West 1991); 38 C.F.R. § 3.500(b)(2) (1999). In the case at hand, it is clear that the VA had significant information associated with the record demonstrating that the appellant had excessive income for VA death pension purposes at the time of the pension reinstatement in September 1993. An EVR and a FSR, showing the appellant's income, were received by the RO in August 1993. This demonstrates that the RO should have known that the appellant's income was excessive for death pension purposes. Moreover, there is no indication in the record that the appellant committed any act of commission or omission in relation to the circumstances in which the overpayment in the amount of $53 was created. In fact, as noted above, she informed the RO in August 1993 of her income. In addition, the Board finds that the appellant did not know nor should she have known that she was receiving an erroneous award. Although the September 1993 letter sent to the appellant informing her of her restored pension effective February 1, 1993, included notice of the maximum annual rate of VA death pension, the Board finds that the appellant had reason to effectively disregard this notice as being inapplicable under the circumstances. The VA knew of her receipt of income above the maximum annual limit, yet her pension was reinstated. The Board finds that the appellant was without fault; accordingly, the Board concludes that the overpayment in the amount of $53 was the result of sole administrative error. 38 C.F.R. § 3.500. ORDER The additional overpayment of VA death pension benefits in the amount of $53 was not properly created; and to that extent the amount of the overpayment is reduced by $53 and the appeal is granted. REMAND The issue still remains, however, whether recovery of the original overpayment of VA death pension benefits in the amount of $6,680 should be waived. In the case at hand, the 1993 EVR referred to in the July 1993 letter that terminated the appellant's pension benefits is not of record. The Board's January 1998 Remand directed the RO to locate the appellant's missing 1993 EVR for the record. Despite the RO's best efforts, the EVR was not located. VA has a duty to assist the appellant in the development of facts pertaining to her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The United States Court of Appeals for Veterans Claims (Court) has stated that the Board must make a determination as to the adequacy of the record. Littke v. Derwinski, 1 Vet. App. 90 (1990). An EVR was received by the RO in May 1992, wherein the appellant reported that she had no income. Another EVR was received by the RO in August 1993, wherein the appellant reported that her income from January 15, 1992 to January 31, 1993 was $10,924. In a FSR received by the RO in August 1993, the appellant reported that she was employed by Tidewater Area Central Hospital Laundry, Inc. There is no indication as to when and where the appellant began working in 1992. The Board notes that as the question of the appellant's employment history could impact on the issue on appeal, the RO should attempt to ascertain when the appellant first began to work in 1992. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should contact the appellant to ascertain when she first began to work in 1992. The RO should attempt to contact the appellant at her two most recent addresses of record: [redacted]. 2. The RO should also contact [redacted] [redacted]., to ascertain the appellant's dates of employment with that company. 3. Thereafter, the claim should be reviewed by the RO. If the claim continues to be denied, the RO should provide the appellant and her representative with a supplemental statement of the case (SSOC) which accurately reflects the reasons for its decision and contains a recitation of the applicable laws and regulations insofar as claims for waiver of recovery of overpayments are concerned. The SSOC should provide the pertinent laws and regulations, to include 38 U.S.C.A. § 5302 (West 1991) and 38 C.F.R. § 1.965 (1999), and a discussion of how each of the elements in these laws and regulations affected the RO's determination. The appellant and her representative should be given the opportunity to respond to the SSOC. Thereafter, the case should be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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. C. W. SYMANSKI Member, Board of Veterans' Appeals