BVA9508117 
DOCKET NO.  92-19 671     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts

THE ISSUE

Entitlement to waiver of recovery of an overpayment of Department
of Veterans Affairs compensation benefits in an amount to be
determined.

REPRESENTATION

Appellant represented by: Keith D. Snyder, Attorney

WITNESS AT HEARING ON APPEAL

Appellant, and his wife

ATTORNEY FOR THE BOARD

T. D. Harrigan, Counsel

INTRODUCTION

The veteran had active military service from September 1943 to
April 1946.

This case came before the Board of Veterans' Appeals (Board) on
appeal from an April 16, 1991 decision of the Boston,
Massachusetts, Regional Office (RO) of the Department of Veterans
Affairs (VA) which retroactively reduced the veteran's
compensation benefits resulting in an overpayment being charged
and from an August 1, 1991 decision of the Committee on Waivers
and Compromises (Committee) of the RO which denied entitlement to
waiver of recovery of that overpayment.  The notice of
disagreement with the reduction of compensation benefits was
received May 10, 1991.  The notice of disagreement with the
denial of waiver of recovery of the overpayment was received on
August 9, 1991.  The statement of the case with regard to the
issue of waiver of recovery of the overpayment was issued on
December 4, 1991.  The statement of the case with regard to the
issue of the reduction of compensation benefits was issued on May
20, 1992.  The substantive appeal was received on July 23, 1992.

In a decision dated in March 1993 the Board held that the portion
of the overpayment covering the period from May 1, 1979, through
March 31, 1991, which was created by monthly payments to the
veteran of the amount payable at the 38 U.S.C.A. § 1114(r) (1)
(West 1991) rate, was not properly created and that the remaining
portion of the overpayment, created by monthly payments to the
veteran in an amount in excess of the 38 U.S.C.A. § 1114(r) (1)
rate, was properly created.  The case was then remanded to the RO
to recalculate the amount of the overpayment and to reconsider
the issue of entitlement to waiver of recovery of the
recalculated overpayment.

REMAND

Following the Board's remand of this case, the RO determined that
one half of the overpayment in question had not been properly
created.  The basis for that determination is not clear.  In its
March 1993 decision the Board determined that that portion of the
overpayment resulting from paying the veteran at the rate
provided at 38 U.S.C.A. § 1114(r) (1) while he was hospitalized
was not properly created and that the portion of the overpayment
resulting from paying the veteran the additional amount at the
rate provided at 38 U.S.C.A. § 1114(r) (2) was properly created.
The proper amount of the remaining overpayment to be considered
for waiver can be calculated by subtracting the amount payable to
the veteran at the § 1114(r) (1) for the period in question from
the amount actually paid to him.

We note that the veteran's attorney has repeatedly requested an
understandable audit of the veteran's account which includes a
breakdown of the amounts paid for a single veteran, the
additional amounts paid for a spouse, the additional amounts paid
for aid and attendance allowance at the 1114(r) (1) rate and the
additional amounts paid for aid and attendance at the 1114(r) (2)
rate.  It is the opinion of the Board that he should be provided
with that information so that he can verify the calculations done
by the RO.

In view of the foregoing, it is the opinion of the Board that
additional action is necessary before a final determination of
this claim   Accordingly, the case is REMANDED for the following
action:

1.  The RO should recalculate the amount of
the overpayment in accordance with the
March 1993 decision of the Board.  The
recalculation should include an audit of
the veteran's account for the period from
May 1, 1979, through March 31, 1991.  The
amount of the remaining overpayment should
be calculated by subtracting the amount
payable to the veteran at the § 1114(r) (1)
for the period in question (amount due)
from the amount actually paid to him
(amount paid).

2.  The veteran's attorney should be
provided with an audit of the veteran's
account including a breakdown of the
amounts paid for a single veteran, the
additional amounts paid for a spouse, the
additional amounts paid for aid and
attendance allowance at the 1114(r) (1)
rate and the additional amounts paid for
aid and attendance at the 1114(r) (2) rate
for the period from May 1, 1979, through
March 31, 1991.

3.  The veteran should be asked to provide
a current financial status report and the
report should be associated with the claims
folder.

When the above action has been completed, the pending issue
should be reevaluated by the Committee and, in the event that the
determination remains adverse to the appellant, the claims folder
and assembled data should be returned to the Board for completion
of appellate review after compliance with the provisions of
38 U.S.C.A. § 7105 (West 1991).  No action is required by the
appellant unless he receives further notice.

          EUGENE O'NEILL
          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.

          (CONTINUED ON NEXT PAGE)
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).