BVA9500725 
DOCKET NO.  93-07 774     )       DATE
          )
          )

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

THE ISSUE

Entitlement to waiver of recovery of an overpayment of disability
compensation benefits, including the question of whether the
overpayment was properly created.

REPRESENTATION

Appellant represented by:  Veterans of Foreign Wars of the United
States

ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel

INTRODUCTION

The veteran retired in August 1976 after some 29 years' active
duty which began in January 1942.  In August 1991, the Department
of Veterans Affairs (VA) Regional Office St. Petersburg, Florida,
denied entitlement to waiver of recovery of an overpayment of
disability compensation benefits in the amount of $2,664.  The
veteran disagreed with that determination.  Later, the regional
office granted waiver of recovery of $800.80 of the overpayment.
Waiver of recovery of the remaining portion of the overpayment,
$1,863.20, was not granted.

REMAND

The record reflects that the veteran has established service
connection for a number of disabilities, including coronary
artery disease, currently rated 100 percent disabling.  His
awards had included an additional allowance for a dependent
spouse, Sophronia.

In February 1991, the veteran notified the regional office that
he was widowed.  He later provided a copy of a death certificate
reflecting the death of his spouse in October 1987.

In May 1991, the veteran's disability compensation was adjusted
to remove his spouse as a dependent, effective from November 1,
1987.  An overpayment of $2,664 resulted from this action.

In its August 1991 determination, the regional office indicated
that the veteran had been at fault in creation of the overpayment
by failing to promptly report his spouse's death.  It was also
held that in the absence of any financial information, a
determination could not be made as to whether collection of the
indebtedness would be against equity and good conscience.

In his substantive appeal in October 1991, the veteran maintained
that since he was a retired member of the military service, the
only amount he should owe would be any taxes due on the
additional sum paid him for a dependent spouse during the period
of the reported overpayment.  He asked that he be provided a
breakdown of the sums paid for his spouse for each year following
her death.

The record further reflects that in a January 1992 report of
contact, the United States Air Force advised that it had adjusted
the veteran's military retired pay to reflect the new VA rates
(which did not provide for a dependent spouse) for the period
from November 1, 1987, through October 31, 1991.  That action
resulted in a retroactive retired pay check of $1,863.20 being
released to the veteran in October 1991.

The regional office indicated in a June 1992 supplemental
statement of the case that recovery of that portion of the
overpayment in the amount of $1,863.20 would not be against
equity and good conscience.  Thus, waiver of recovery of that
portion of the indebtedness was denied.  It was indicated that
waiver of recovery of the remaining portion of the overpayment or
$800.80 was granted.

In December 1992, the veteran's representative asked that, in
accordance with the veteran's request, he be provided with a
breakdown of the amounts paid for a dependent wife following her
death.  That action has not been accomplished.

The record further reflects that when the veteran's case was
referred to the Committee on Waivers and Compromises in mid-1991,
it was indicated that a financial status report had been
requested from the veteran.  However, he has made no reference to
receiving such a report.  In September 1993, the veteran's
representative requested that a current financial status report
be obtained from the veteran.

In view of the aforementioned matters and in order to afford the
veteran every consideration, Findings of Fact and Conclusions of
Law are being deferred pending a REMAND for the following action:

          1.  The veteran should be sent an audit of
his account reflecting the amounts paid and
the amounts due during the period of the
overpayment.

          2.  The veteran should also be sent a
Financial Status Report (VA Form 4-5655) for
completion and return to the regional
office.

          3.  The veteran's claim should then be
reviewed by the regional office.  If the
denial is continued, he and his
representative should be sent a supplemental
statement of the case and be afforded the
appropriate time in which to respond.

When the above action has been completed, the case should be
returned to the Board for further appellate consideration, if
otherwise in order.  No action is required of the veteran until
he receives further notice.

The purpose of this REMAND is to obtain clarifying information
and also to ensure that the requirements of due process of law
are satisfied.  The Board intimates no opinion as to the
disposition warranted in this case pending completion of the
requested action.

          WAYNE M. BRAEUER
          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).