BVA9506045 DOCKET NO. 93-09 383 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to waiver of the recovery of an overpayment of disability pension benefits, in the calculated amount of $1,068, to include the question of whether the overpayment was due solely to administrative error on the part of the Department of Veterans Affairs (VA). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran served on active duty from December 1945 to February 1947. He has been represented throughout his appeal by the Veterans of Foreign Wars of the United States. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 1992 decision by the Committee on Waivers and Compromises (Committee) at the Chicago, Illinois Regional Office (RO), which denied the veteran's request for waiver of the recovery of an overpayment of pension benefits, in the calculated amount of $1,068. The appeal was received at the Board in April 1993. REMAND The record indicates that, prior to the creation of the overpayment, the veteran had been in receipt of nonservice- connected pension, at the aid and attendance rate; his monthly rate included the deduction from income of unreimbursed nursing home expenses. In August 1991 the VA was advised that the veteran no longer resided in the VA facility but had moved to a VA Medical Center and, further, that he no longer had nursing home or other medical expenses. As a result of this information, the veteran was advised in March 1992 that his award had been reduced, effective March 1, 1992, since he no longer had unreimbursed nursing home expenses which could be deducted from his countable income. In April 1992, the RO proposed to discontinue the veteran's aid and attendance status; however the veteran was advised that his aid and attendance would continue for a period. In June 1992, action was taken to retroactively reduce the award, due to the reduction of unreimbursed medical expenses, effective September 1991. It was the June 1992 action that resulted in the overpayment at issue, in the calculated amount of $1,068, covering the period from September 1, 1991 to March 1, 1992 The Board emphasizes that at the time of the June 1992 reduction, the veteran was still considered to be entitled to aid and attendance benefits. Action was later taken to discontinue aid and attendance, but such action had no effect on this overpayment. With respect to the overpayment issue, it is maintained that the RO was put on notice in August 1991 that the veteran was no longer receiving skilled nursing home care. It is argued, in effect, that the VA's delay in adjusting his pension benefits is the sole cause of the overpayment and that, therefore, the overpayment was due solely to administrative error on the part of the VA. The service representative has requested that the case be remanded in order for the RO to adjudicate the question of whether the overpayment was properly assessed; he cited a decision from the Court of Veterans Appeals which held, in a case involving a waiver of recovery of a long guaranty indebtedness, that "the question of validity of the asserted debt, when challenged, is an issue that must be determined...in deciding on a waiver of indebtedness application." Schaper v. Derwinski, 1 Vet.App. 430,431 (1991). In addition, the service representative points out that the Committee's denial of the veteran's request for waiver of the debt was founded on the basis that repayment would not cause create undue financial hardship; however, he also points out that the Committee's decision was based on old income information. Obviously, these crucial factual matters must be clarified before further appellate review would be appropriate. In light of the foregoing, and in keeping with VA's duty to assist veterans 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) (1994), 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 again review the evidentiary record in light of the veteran's contentions and make a formal determination as to whether the overpayment of disability pension benefits was due solely to administrative error on the part of VA. 2. If the above determination remains adverse to the veteran, he should be furnished a Financial Status Report (VA Form 4-5655), and be afforded the opportunity to provide current income and expense data for review by the Committee. 3. Thereafter, the RO's Committee on Waivers should again consider the question of waiver of the recovery of any remaining overpayment of disability pension benefits, under the standard of equity and good conscience. 4. 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 laws and regulations, including those relevant to the issue of sole administrative error, and reasoning for the determination made. 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. (CONTINUED ON NEXT PAGE) 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).