BVA9505460 DOCKET NO. 93-27 785 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to waiver of the recovery of an overpayment of disability pension benefits, in the calculated amount of $5,929. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran served on active duty from June 1941 to November 1945. He has been represented throughout his appeal by the Paralyzed Veterans of America, Inc. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 1993 decision by the Committee on Waivers and Compromises (Committee) at the Louisville, Kentucky Regional Office (RO), which denied the veteran's request for waiver of the recovery of an overpayment of disability pension benefits, in the calculated amount of $5,929. The appeal was received at the Board in December 1994. The Board observes that in a letter from the representative organization dated in July 1993, it was reported that the veteran wished to cancel the appeal on the overpayment issue. Nonetheless, arguments in support of the veteran's request for waiver of the overpayment of disability pension benefits were submitted in November 1993 and January 1995. It was uncertain whether the veteran wished to pursue his claim for waiver of the overpayment. However, in a statement dated February 15, 1995, the representative organization indicated that the veteran wished to continue his appeal. REMAND The record indicates that the overpayment in question was created after it was discovered in September 1992 that the veteran failed to promptly notify the Department of Veterans Affairs (VA) that he had received retirement benefits and his wife received interest income in 1989. In December 1992, action was taken to retroactively adjust the veteran's award effective February 1, 1989, and to terminate it, effective March 1, 1992, based upon excessive income. This action resulted in the creation of an overpayment of $5,929. Subsequently, pension benefits were reinstated, effective in March 1992, to include an award of benefits at the aid and attendance rate, effective in August 1993. While this award action reduced the amount actually owed the Government, since monies awarded were applied to the debt, the overpayment which the Board will consider is that created during the relevant period from February 1, 1989 through February 1992, in the amount of $5,929. A review of the record reflects that the veteran had been in receipt of disability pension benefits effective since December 18, 1979, based on income derived solely from social security benefits. The veteran reported no assets or net worth, and he denied income from any other sources. In a letter to the veteran dated September 22, 1992, the RO stated that they had received the veteran and his wife's "verification of the receipt of $312 interest income and $1,553 from Kentucky Retirement Systems in 1989." However, the claims folder contains no verification of these amounts by the veteran and his wife. In a decision of February 1993, the Committee denied the veteran's request for a waiver of recovery of an overpayment of disability pension benefits, on the grounds that the veteran's failure to report the interest income and retirement benefits constituted misrepresentation of a material fact, precluding the waiver of the debt. In view of such finding, discussion of the elements of the standard of equity and good conscience was inappropriate. In light of the foregoing, and in keeping with VA's duty to assist claimants in the development of facts pertaining to their claims, as provided by 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993), the Board finds that further development is needed. Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. The RO should include in the record a copy of the "verification" received from the veteran and his wife in September 1992, confirming that he had received $1,552 from Kentucky Retirement Systems, and his wife received $312 interest income during 1989. It should be ascertained whether that income, and in what amounts, continued during the remainder of the overpayment period, that is, through February 1992. 2. After this information is received and incorporated into the claims folder, the RO should recalculate the overpayment, if the additional income information so warrants. 3. Thereafter, the case should be referred to the Committee for a formal determination if the finding of misrepresentation on the veteran's part is confirmed. 4. If the Committee determines that waiver of recovery of the overpayment is not barred by a finding of fraud, misrepresentation or bad faith, the veteran should be given the opportunity to submit another Financial Status Report, in the event that his financial circumstances have changed. The Committee should give full consideration to his claim for waiver under the standard of equity and good conscience, with each element of the standard discussed only if the question of whether the veteran exhibited fraud, bad faith, or misrepresentation was resolved in his favor. 5. In the event the determination remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case which fully sets forth all applicable law and regulations, and shows the reasoning for the determination. A reasonable period of time in which to respond should be given. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to assist the veteran and afford due process of law. 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. 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).