Citation Nr: 1305146	
Decision Date: 02/12/13    Archive Date: 02/21/13

DOCKET NO.  08-16 262	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Whether an overpayment in the amount of $14,476.70 may be waived based upon consideration of equity and good conscience.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel





INTRODUCTION

The Veteran, who served on active duty from April 1947 to November 1967, died in December 2002.  The Appellant is the Veteran's surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an adverse determination in April 2007 of a Department of Veterans Affairs (VA) Regional Office.

In December 2009, the Appellant did not appear for a hearing before the Board.  In the absence of a timely request for postponement, the request for a hearing is deemed withdrawn.  38 C.F.R. § 20.704(d).

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C.  


REMAND

In May 2010, the Board remanded the claim to provide the Appellant an audit of the debt and for the RO to determine whether the creation of the debt involved fraud, misrepresentation, or bad faith on the part of the Appellant.

A copy of the audit was provided to the Appellant, and the RO determined that the creation of the debt did not involve fraud, misrepresentation, or bad faith on the part of the Appellant. 





In its remand, the Board also directed that if there was no fraud, misrepresentation, or bad faith on the part of the Appellant in creating the debt, waiver of the recovery of debt should be considered under the standard of equity and good conscious, which has not been done.  38 C.F.R. § 1.965(a). 

Accordingly, the case is REMANDED for the following action:

Ask the Appellant to complete a Financial Status Report and then consider the waiver of recovery of overpayment under 38 C.F.R. § 1.965(a) (the standard of equity and good conscious). 

In making the determination consider whether or not the decision of waiver of indebtedness by the Committee on Waivers and Compromises of the St. Paul VARO in November 2011, pertains to the current indebtedness of $14,476.70. 

If the waiver of recovery of the indebtedness is denied in full or in part, then provide the Appellant and her representative a supplemental statement of the case and return the case to the Board.

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).








The 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. 2012).



_________________________________________________
George E. Guido Jr.
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) (2012).