Citation Nr: 1009237	
Decision Date: 03/11/10    Archive Date: 03/17/10

DOCKET NO.  08-26 351A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota


THE ISSUES

1.  Whether the income of the Veteran's surviving spouse is 
excessive for purposes of payment of Department of Veterans 
Affairs nonservice-connected death pension benefits. 

2.  Entitlement to a waiver of recovery of an overpayment of 
pension benefits in the amount of $16,344.00. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission




ATTORNEY FOR THE BOARD

Jennifer R. White, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1942 to December 
1945.  The appellant is the Veteran's surviving spouse. 

These matters come before the Board of Veterans' Appeals 
(Board) on appeal from September 2007 decisions of the 
Department of Veterans Affairs (VA) Pension Maintenance 
Center (PMC) in St. Paul, Minnesota.  The case is otherwise 
in the jurisdiction of the Waco, Texas Regional Office (RO).

The PMC terminated the appellant's death pension benefits 
effective April 1, 2006, which was the date of initial 
entitlement to such benefits, because the appellant's 
countable income and net worth exceeded the maximum amount 
allowed by law.  

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the 
appellant if further action is required.


REMAND

A review of the record reflects that the appellant has filed 
a notice of disagreement with the letter decision dated 
September 2007 indicating that she has been overpaid in the 
amount of $16,344.00.  It does not appear that a Statement of 
the Case has been issued on this issue.  Accordingly, the 
Board is required to remand this issue for the issuance of a 
statement of the case.  See Manlincon v. West, 12 Vet. App. 
238 (1999).  After the RO has issued the SOC, the claim 
should be returned to the Board only if the appellant 
perfects the appeal in a timely manner.  See Smallwood v. 
Brown, 10 Vet. App. 93, 97 (1997).

In addition to the above stated reason, this effectively is 
challenging the validity of the debt.  Thus, consideration of 
the certified issue must be delayed pending development of 
that issue.

Accordingly, this issue is REMANDED for the following action.

1.  The RO should undertake all actions 
required by 38 C.F.R. § 19.26, including 
issuance of a Statement of the Case, so that 
the appellant may have the opportunity to 
complete an appeal on this issue (if she so 
desires) by filing a timely substantive 
appeal.  There should also be a decision on 
the validity of the debt with appropriate 
notice to the appellant of the decision 
reached.

2.  Thereafter, the claim concerning 
pension should be readjudicated.  If the 
benefit sought on appeal remains denied, 
the appellant and the representative, 
should be furnished a supplemental 
statement of the case and given the 
opportunity to respond.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).


_________________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).