Citation Nr: 1107820	
Decision Date: 02/28/11    Archive Date: 03/09/11

DOCKET NO.  08-39 306	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUES

1.  Entitlement to nonservice-connected pension benefits for the 
period from February 1, 2005, through April 30, 2008.

2.  Entitlement to nonservice-connected pension benefits for the 
period beginning May 1, 2008.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel




INTRODUCTION

The Veteran had active duty service from October 1966 to October 
1968.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from an April 2008 letter of determination by the 
Department of Veterans Affairs (VA) Regional Office (RO), which 
determined that the Veteran was ineligible for VA pension 
benefits beginning February 1, 2005.  

For reasons that will become clear in the body of the decision, 
the issues on appeal have been recharacterized, as reflected on 
the title page.

The Veteran indicated in his December 2008 substantive appeal 
that he wished to appear at a hearing before a Veterans Law 
Judge.  The requested hearing was scheduled for November 2010; 
however the Veteran failed to appear for that hearing at that 
time.  

The issue of entitlement to nonservice-connected pension benefits 
for the period beginning May 1, 2008, is addressed in the REMAND 
portion of the decision below and is REMANDED to the RO via the 
Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  A determination that the Veteran was ineligible for 
nonservice-connected pension resulted in an overpayment of 
benefits that he had already received from February 2005 through 
April 2008.  

2.  An October 2008 decision issued by the Office of Waiver and 
Compromises granted a waiver of overpayment, such that the 
Veteran was not required to repay any benefits received from 
February 2005 through April 2008.  




CONCLUSION OF LAW

The appeal pertaining to entitlement to nonservice-connected 
pension benefits for the period from February 1, 2005, through 
April 30, 2008, is dismissed as such benefits have already been 
received and repayment of such monies has already been waived, 
such that there remains no justiciable case or controversy before 
the Board at this time. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 
C.F.R. § 20.101 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that VA's finding that he is ineligible for 
pension benefits in this case is due to the incorrect inclusion 
$8,506.00 of income as part of his personal income, as opposed to 
the corporate income for his farming business (QSF).  He asserts 
that such money was received by QSF from the United States 
Department of Agriculture (USDA) as a result of a conservation 
program designed to benefit small farms.  That income was 
obtained and deposited in the QSF corporate account and was not 
personal income to the Veteran.  He further states that the 
Internal Revenue Service (IRS) audited both QSF and him 
personally and found that the subsidies received were proper and 
for the corporate benefit of QSF and not the Veteran.

Essentially, the Veteran argues on appeal that the inclusion of 
that "other income" which was rightfully the corporate income 
of QFS, and not his own personal income, caused him to become 
ineligible for VA pension benefits for the period in question.  
He does not dispute the amount of pension benefits that he 
received or was due to receive during that period of time, but 
merely that he was adjudged to be over the personal income 
threshold amount that qualified him for entitlement to VA pension 
benefits.

In this case, the determination of ineligibility for nonservice-
connected pension created an overpayment of monetary benefits 
that the Veteran had already received from February 2005 through 
April 2008.  He applied for and was granted a waiver of that 
overpayment in an October 7, 2008, decision from the Office of 
Waiver and Compromises.  That decision indicated that the waiver 
request was made on May 13, 2008, accompanied by a statement of 
hardship concerning repayment of the debt.  It was determined 
that the overpayment would impede the Veteran's ability to afford 
the basic necessities of living that the payment of the benefits 
was to provide income.  Moreover, it was found that collection of 
the overpayment amount would result in hardship.  Thus, the 
waiver of overpayment was granted, as the collection of the debt 
such would be against equity and good conscience, particularly 
given that the absence of fraud, misrepresentation or bad faith 
on the part of the Veteran.  Moreover, the fault of the Veteran 
in the overpayment was deemed minimal.

Thus, the Board notes that the Veteran has received the full 
amount of benefits from the period of February 2005 to April 
2008, to which he would have been entitled if eligibility had not 
been rescinded in the April 2008 letter of determination.  

Moreover, as the Veteran has been relieved by the waiver of 
overpayment from repaying this money received during that period 
to VA, entitlement to pension benefits for that period is no 
longer in controversy.  Thus the issue of entitlement to pension 
benefits for that period of time is moot, and is thus dismissed.  


ORDER

The appeal as to the claim of entitlement to nonservice-connected 
pension benefits for the period from February 1, 2005, through 
April 30, 2008, is dismissed.


REMAND

As it is unclear from the record whether the Veteran has been 
receiving pension benefits since May 1, 2008, the Board must 
remand in order to properly assess eligibility in this case.  
Specifically, the Board notes that the record before it at this 
time does not include any tax or income information necessary to 
determine eligibility, nor is it particularly clear as to what, 
if any, pension benefits the Veteran is currently receiving.  


Accordingly, the case is REMANDED for the following action:

1.  The RO should find and associate the 
Veteran's IVM folder with the claims file, if 
such exists.  If such folder cannot be 
located or has been destroyed, such should be 
noted in the record.

2.  The RO should also associate with the 
claims file any documents reflecting monetary 
payment of pension benefits, since May 1, 
2008.

3.  The RO should also find and associate 
with the claims file any and all income and 
tax documentation that the Veteran has filed 
with VA, as well as any letters of 
determinations-to include the April 2008 
letter of determination terminating the 
Veteran's pension benefits in the first place 
and any underlying documentation relied upon 
to make that determination, including the tax 
forms for QSF, Eagle Production Products, 
Inc. and the Veteran's personal financial 
information from 2005 through 2008.

4.  If the RO cannot find any of this 
information, then and only then, should the 
Veteran be contacted in order to obtain 
relevant income and tax information necessary 
to adjudicate the eligibility claim from 
May 1, 2008 onward.

5.  Following the completion of the above to 
the extent possible, the RO should 
readjudicate the Veteran's claim of 
entitlement to nonservice-connected pension 
benefits for any period since May 1, 2008, 
for which he has not received pension 
benefits or in which monies received by his 
business have been calculated as part of his 
personal income.  If the benefit sought on 
appeal remains denied, the Veteran and his 
representative, if any, should be furnished a 
supplemental statement of the case and given 
the opportunity to respond thereto before the 
case is returned to the Board.

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. 2010).




______________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs