Citation Nr: 1306116 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 05-14 271A ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in Milwaukee, Wisconsin THE ISSUES 1. Validity of the Veteran's debt for overpayment of nonservice-connected pension (NSCP) benefits. 2. Entitlement to waiver of the recovery of overpayment of nonservice-connected pension (NSCP) benefits. (The issue of entitlement to service connection for an acquired psychiatric disability, is the subject of a separate action by the Board.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1976. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2005 determination of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. These documents were reviewed in conjunction with this appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In January 1998, the Veteran was awarded VA non-service connected pension (NSCP) benefits, effective January 27, 1997. The monthly pension amount was based on a reported income of $0. Since then, the record shows that the Veteran was in receipt of Social Security Administration (SSA) benefits at the time and that he and his wife were employed for a portion of this period. The October 2004 determination refers to an initial debt of $3,585. The Notice of Disagreement, Statement of the Case, and Substantive Appeal (VA Form 9) refer to a total debt of $29,344. It is unclear whether the larger number incorporates additional amounts of overpayment that were previously waived in March 2001 and April 2003 determinations, and if so, what is the basis for disregarding the previous determinations. The Veteran has disputed the amount of the debt. As such, a full accounting of the debt is necessary prior to a determination of the validity of the underlying debt and, ultimately, whether waiver of the recovery of overpayment of NSCP benefits is warranted. Once a full accounting has been made and the amount at issue is clarified, this case should be forwarded to the Committee on Waivers and Compromises (COWC) to determine whether there is a legal bar to waiver (fraud, bad faith or misrepresentation) and, if not, whether waiver of the recovery of overpayment of NSCP benefits would be against equity and good conscience. Accordingly, the case is REMANDED for the following action: 1. The RO should complete a full audit for the entire period covered by the overpayments, which accounts for his receipt of Social Security Administration (SSA) benefits at the time and his and his wife employment income and fully justifies the amounts charged. The RO should then provide an accounting to the Veteran, explaining the amount of the overpayment and how it was calculated. If it is determined that any or all of the overpayment at issue was improperly created, action should be taken to rectify this error. 2. If an overpayment is found to have been properly created, the Veteran should be allowed an opportunity to submit additional evidence pertinent to his request for waiver of recovery of the assessed overpayment, including a complete financial status report, providing all relevant income, expenses, and assets. 3. After completion of the above, forward the claim to the Committee on Waivers and Compromises (COWC) for determination of whether there is a legal bar to waiver (fraud, bad faith or misrepresentation) and, if not, whether waiver of the recovery of overpayment of NSCP benefits would be against equity and good conscience. 4. If the validity of the debt claim and/or the waiver claim are denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case addressing each issue which remains denied. After the Veteran and his representative are afforded an opportunity to respond, the case should be returned to the Board for appellate review. 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. 2012). _________________________________________________ THOMAS J. DANNAHER 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).