BVA9500596 
DOCKET NO.  93-07 497     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania

THE ISSUE

Entitlement to a waiver of recovery of an overpayment of improved
pension benefits, in the calculated amount of $8,000.00.

REPRESENTATION

Appellant represented by: West Virginia Department of
Veterans Affairs

ATTORNEY FOR THE BOARD

J.P.  Reep,  Associate Counsel

INTRODUCTION

The veteran had active military service from July 1941 to
December 1945.

The veteran is appealing from a June 1992 determination denying
his claim for waiver of recovery of an overpayment of pension
benefits, by the Committee on Waivers and Compromises (Committee)
of the Pittsburgh, Pennsylvania Regional Office (RO).

REMAND

In July 1987, the veteran was initially awarded pension benefits,
effective August 1, 1987.  In January 1992, the RO terminated the
award, effective from February 1, 1989.  The stated basis for the
retroactive termination of the veteran's pension award, and the
creation of the resulting overpayment, was the discovery of
previously unreported income of $8,052.00.  According to a June
1992 decision of the Committee, the veteran, in January 1992,
verified income for 1989, and included previously unreported
interest and dividends of $8,052.00.  No such January 1992
verification is of record.

It is contended that the unreported income was derived from
stocks given to the veteran by his brother, and that the veteran
was to use that income to care for his sisters.  Apparently, the
veteran receives three checks every three months in amounts
totaling approximately $1,000.00.  Unfortunately, there is no
documentation on file indicating when the veteran first began
receiving the payments, nor does the record indicate if the
veteran owns the stock outright, or if he is a beneficiary of a
trust.  Furthermore, it is not apparent whether, as the veteran
suggests, he has any legal restrictions on the use of the money,
such as a requirement that he care for his sisters.  These
factual issues must be clarified before the ultimate issue in
this case may be resolved.

In addition, we note that, due to the length of time involved in
the appellate process, the veteran's latest Financial Status
Report (FSR), dated in March 1992, is no longer contemporaneous.

Accordingly, the Board REMANDS this case to the RO for the
following actions:

1.  The RO should acquire from the
veteran any documentation reflecting
the date and nature of the stock
transfer at issue.  In particular, the
documentation should indicate whether
ownership is vested in the veteran
directly, or whether the stock is
being held in trust with the veteran
as a beneficiary, etc.  If
appropriate, the RO should also
acquire documentation indicating
whether the veteran has any
restrictions concerning the use of the
income derived from the stock.

2.  After this information has been
obtained, the RO should determine
whether termination of his monthly
rate of benefits, effective
February 1, 1989, and the resulting
overpayment, were correct.

3.  In the event that an overpayment
remains in the veteran's account, he
should be provided the opportunity to
submit an up-to-date financial status
report.  The Committee should again
review the veteran's request for a
waiver of recovery of overpayment of
improved pension benefits.
Consideration should be given to all
elements of the standard of equity and
good

conscience set forth by 38 C.F.R.
§ 1.965(a) (1993).  The decision of
the Committee should be placed in the
record.

4.  If the determination remains adverse to
the veteran, he and his representative
should be furnished a supplemental
statement of the case (SSOC) which
addresses the actions taken pursuant to
this remand and explains the bases for the
determinations made.  The SSOC should also
fully cite all applicable legal provisions,
including the regulations pertinent to the
creation of an overpayment of benefits
under the improved pension program and the
applicable provisions of 38 U.S.C.A. § 5302
(West 1991) and 38 C.F.R. §§ 1.963, 1.965
(1993), regarding waiver.

Once the veteran and his representative have been afforded the
opportunity to respond to the SSOC, the case should be returned
to the Board for appellate review if in order.  The purpose of
this remand is to clarify essential aspects of the record and to
ensure 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) (1993).