Citation Nr: 1136899	
Decision Date: 09/30/11    Archive Date: 10/11/11

DOCKET NO.  07-28 694	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to a waiver of recovery of an overpayment of VA improved pension benefits in the amount of $9,360.00.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Murray, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from September 1967 to April 1968, with additional service in the Army Reserves. 

The matter involving the waiver of an overpayment comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision of the Committee on Waivers and Compromises (Committee) at the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania, in which it denied the Veteran's claim for waiver of recovery of the overpayment. 

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

The Veteran seeks a waiver of recovery of an overpayment of VA improved pension compensation in the amount of $9,360.00.  In December 2006, the Veteran's request for a waiver of recovery of an overpayment was denied by the RO, because it determined that the debt was incurred when the Veteran failed to disclose all sources of income and such failure constituted bad faith on the part of the Veteran.  

In the decision denying the waiver and in the May 2007 statement of the case, the Committee addressed evidence that is not in the claims file, which the Board finds it must review before making its own determination as to whether a waiver is warranted, which is as follows:

* January 2006 Eligibility Verification Report from the Veteran, wherein he reported zero income from all sources.  

* A March 2006 VA Form 119, Report of Contact, which shows the RO contacted the Veteran regarding Social Security income.

* The March 2006 letter that VA sent the Veteran requesting a copy of the Veteran's spouse's W-2 from 2005.

* April 2006 response from the spouse's employer.  

* A July 2006 Financial Status Report completed by the Veteran.  

On remand, the Agency of Original Jurisdiction (AOJ) should associate these records with the claims file.

Accordingly, the case is REMANDED for the following action:

1. Attempt to obtain the originals or copies of the following documents: 

* January 2006 Eligibility Verification Report from the Veteran, wherein he reported zero income from all sources.  

* A March 2006 VA Form 119, Report of Contact, which shows the RO contacted the Veteran regarding Social Security income.

* The March 2006 letter that VA sent the Veteran requesting a copy of the Veteran's spouse's W-2 from 2005.

* The April 2006 response from the spouse's employer.  

* A July 2006 Financial Status Report completed by the Veteran.  

2. If additional relevant evidence is received, the agency of original jurisdiction should re-adjudicate the claim.  If waiver remains denied, the agency of original jurisdiction should issue an appropriate supplemental statement of the case and afford the appellant and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant has the right to submit additional evidence and argument on the matter 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 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. 2011).



______________________________________________
Alexandra P. Simpson
Acting 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) (2011).