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