Citation Nr: 0004204	
Decision Date: 02/17/00    Archive Date: 02/23/00

DOCKET NO.  96-45 335	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Whether a debt in the amount of $9,089.00 stemming from 
the overpayment of improved pension benefits was properly 
created and calculated.

2.  Entitlement to waiver of recovery of a debt in the amount 
of $9,089.00 stemming from the overpayment of improved 
pension benefits.


REPRESENTATION

Appellant represented by:	Michael E. Wildhaber, Attorney


ATTORNEY FOR THE BOARD

H. Roberts, Counsel
INTRODUCTION

The veteran served on active duty from October 1963 to July 
1965.  The veteran died on July [redacted], 1972.  The appellant 
is the surviving spouse of the veteran.

This appeal arises before the Board of Veterans' Appeals 
(Board) from a February 1995 decision of the Committee on 
Waivers and Compromises of the St. Petersburg, Florida, 
Regional Office (RO) of the Department of Veterans Affairs 
(VA), which denied a waiver of recovery of a debt stemming 
from the overpayment of improved pension benefits.

This case was previously before the Board and was the subject 
of a March 1998 Board decision.  However, that March 1998 
Board decision was vacated and remanded by a July 1999 Order 
of the United States Court of Appeals for Veterans Claims, 
issued pursuant to a July 1999 Joint Motion to Vacate and 
Remand the Board of Veterans' Appeals Decision, and for a 
Stay of Further Proceedings.


REMAND

The July 1999 Joint Motion to Vacate and Remand the Board of 
Veterans' Appeals Decision, and for a Stay of Further 
Proceedings (Joint Motion) noted that the appellant initially 
disputed the creation and calculation of the debt at issue in 
this case.  She was issued a January 1995 audit of the 
creation and calculation of the debt.  The Joint Motion found 
that a November 1995 correspondence from the appellant 
constituted a notice of disagreement to the creation and 
calculation of the debt.

The United States Court of Appeals for Veterans Claims 
(Court) has held that where a notice of disagreement has been 
filed with regard to an issue, and a statement of the case 
has not been issued, the appropriate Board action is to 
remand the issue to the RO for issuance of a statement of the 
case.  Manlincon v. West, 12 Vet. App. 238 (1999).

The Board notes that the Court has also held that where the 
validity of indebtedness in dispute, a remand is required to 
enable VA to make a determination on the validity of the 
asserted debt prior to adjudication of a claim of entitlement 
to waiver or recovery of that debt.  Schaper v. Derwinski, 1 
Vet. App. 430 (1991).  This is a preliminary matter and must 
be resolved prior to consideration of entitlement to waiver 
of recovery of that debt.  Therefore, the appellant's claim 
of entitlement to wavier of recovery of a debt stemming from 
the overpayment of improved pension benefits is held in 
abeyance, pending the resolution of the appellant's 
disagreement with the creation and calculation of that debt.

Accordingly, this case is REMANDED for the following 
development:

1.  The RO should issue the appellant and 
her representative a statement of the 
case with regard to the issue of the 
propriety of the creation and calculation 
of the appellant's debt stemming from the 
overpayment of pension benefits.  The 
appellant should be informed of her 
appeal rights and of the actions 
necessary to perfect an appeal on that 
issue.  The appellant should be according 
the appropriate amount of time in which 
to perfect an appeal on that issue.

2.  Following completion of the 
foregoing, the RO should review the issue 
or issues on appeal.  If the decision 
remains adverse to the appellant, in 
whole or in part, she and her 
representative should be furnished a 
supplemental statement of the case and 
afforded the applicable period of time 
within which to respond.  Thereafter, 
subject to current appellate procedures, 
the case should be returned to the Board.

The Board expresses its gratitude in advance to the RO for 
assisting in the requested development.

The purpose of this REMAND is to ensure compliance with due 
process considerations and to comply with the mandate of the 
July 1999 Joint Motion.  No inference should be drawn 
regarding the final disposition of this claim.

The appellant 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 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, 
the VBA Adjudication Procedure Manual, M21-1, Part IV, 
directs the RO to provide expeditious handling of all cases 
that have been remanded by the Board and the Court.  See M21-
1, Part IV,  8.44-8.45, 38.02-38.03.




		
	M. W. GREENSTREET
	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).