Decision Date: 09/14/95 Archive Date: 09/14/95 DOCKET NO. 93-21 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to waiver of recovery of an overpayment of improved death pension benefits, to include whether the overpayment was properly created. ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran had active service from February 1951 to February 1953 and died on January [redacted], 1987. This appeal arises from a January 1993 decision by the New York, New York, Committee on Waivers and Compromises denying waiver of recovery of an overpayment of improved death pension in the calculated amount of $3,009. REMAND The appellant was awarded improved death pension benefits effective March 1, 1987, based on no earned or unearned income. Improved Pension Eligibility Verification Reports dated in March 1988, 1989, 1990 and 1991 indicate that the appellant had neither earned nor unearned income and that she had no money in bank accounts. Effective December 1, 1991 her monthly improved death pension was $413 per month. The appellant's Improved Pension Eligibility Verification Report (EVR) dated in April 1992 indicated interest income of $2,001 for the annualization period of March 1, 1991 to February 29, 1992 and stated that the amount for the following annualization period would be about the same. The EVR listed $9,101 in bank accounts. By letter dated in June 1992 the appellant's award was reduced to $231 effective March 1, 1991 and to $246 effective December 1, 1991 based on the receipt of interest income. By letter dated in June 1992 the appellant was notified of an overpayment in the calculated amount of $2,505. By letter dated in December 1992, the appellant was notified of a proposed termination of benefits effective January 1, 1989 because the regional office (RO) had evidence indicating that the appellant had earned income of $744 and unearned income of $6,336 in 1989. In a Statement in Support of Claim dated in July 1992 the appellant stated that money was in a bank account which did not belong to her, but to her daughters. The statement also noted that the appellant could not afford to repay the debt. The decision of the Committee on Waivers and Compromises states that the appellant received interest of $2,001, earned income of $744 and unearned income of $6,336 in 1989 and had a net worth of $9,101 for that year. The decision is negative for an explanation of why the interest income and unearned income were attributed to the 1989 annualization period. The decision also states that the total debt was $3,009. The decision is negative for discussion of the ownership of the bank account at issue. By letter dated in March 1993 the appellant was notified of a debt in the amount of $15,066. The statement of the case dated in June 1993 notes that the appellant had raised the issue of the ownership of the account in issue but makes no reference to this question in the discussion. The claims folder does not contain documentation to substantiate the earned income of $744 or the unearned income of $6,336. The Board of Veterans' Appeals (Board) presumes in this regard that the RO, out of a proper concern to safeguard documents containing confidential income information, excluded such documentation from the claims folder. While the Board commends the RO for such concerns, the precepts of due process require that documentation of the material evidence that is the basis of a RO determination be available for appellate review. The this end, M21-1, Part IV, Chapter 31, Subchapter IX (particularly paragraph 31.70) now provides for ways of extracting "sanitized" documentation for inclusion in the claims folder. (These procedures were formerly set out in VBA Circular 20-91-11 [February 22, 1993]). The Board further observes that the appellant has raised the issue of the proper creation of the indebtedness by disputing the fact that a bank account and the interest therefrom were her property. This issue has not been determined by the RO. The appellant's Notice of Disagreement, received in March 1993 indicates that she had submitted evidence or an explanation regarding the creation of the debt several times. The file does not contain this evidence. In her appeal to the Board the appellant states that she had incurred unreimbursed medical expenses during the annualization periods in issue. Since the appellant's claim is well grounded, the VA has a duty to assist in the development of facts pertinent to her claim. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103 (1994). Accordingly, the case is remanded to the RO for the following: 1. The RO should, in accordance with the provisions of M21- 1, Part IV, Chapter 31, (particularly paragraph 31.70), extract for inclusion in the claims file appropriate documentation which supports any finding that the appellant was in receipt of earned income or unearned income in 1989 or later years which led to the overpayment for which waiver is sought. 2. The RO should request that the appellant furnish a statement from the financial institution in question which should show the names and status of the owners of the account which generated the income which led to the overpayment at issue. M21-1, Part 4, Chapter 31.62. 3. The RO should contact the appellant to ascertain whether all evidence regarding unreimbursed medical expenses has been submitted and if not, to obtain evidence from the appellant regarding unreimbursed medical expenses from 1989 forward. 4. The appellant should be contacted and asked to complete and return a financial status report (VA Form 4-5655) reflecting her current income from all sources, monthly expenses and assets. That information should then be associated with the claims file. 5. Thereafter, the appellant's claim should be further reviewed under the appropriate laws and regulations including 38 U.S.C.A. § 5302 (as modified by Section 311, Public Law 101-237, as discussed above). If the determination is adverse, a supplemental statement of the case containing a recitation of the pertinent evidence, laws and regulations, and reasons for decision should be provided to the appellant along with an opportunity to respond. Thereafter, the claims file, should be returned to this Board for further appellate consideration, if otherwise in order. The purpose of this remand is to procure clarifying data and to ensure all due process. No action is required by the appellant until she receives further notice. WAYNE M. BRAEUER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994). - 2 -