Citation Nr: 0739292	
Decision Date: 12/13/07    Archive Date: 12/19/07

DOCKET NO.  98-01 044	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to waiver of recovery of an overpayment of death 
pension benefits calculated in the amount of $20,864, to 
include whether the overpayment was properly created.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate 
for Veterans Affairs


ATTORNEY FOR THE BOARD

Raymond F. Ferner, Counsel


INTRODUCTION

This matter originally came before the Board of Veterans' 
Appeals (BVA or Board) on appeal from a July 1997 decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in San Juan, Puerto Rico , that denied the benefit sought on 
appeal.  The appellant, the surviving spouse of the veteran, 
who had active service from January 1945 to Aprol 1946 and 
who died in August 1991, appealed that decision to the BVA 
and the case was referred to the Board for appellate review.  

In a decision dated in March 1999, the Board affirmed the 
RO's denial of the benefit sought on appeal.  The appellant 
then appealed the Board's decision to the United States Court 
of Appeals for Veterans Claims (Court), and in an Order dated 
in April 2000, the Court returned the case for additional 
evidentiary development. In March 2001, the Bord then 
returned the case to the RO for completion of the additional 
evidentiary development, and the case was subsequently 
returned to the Board for further appellate review.

In a decision dated in January 2005, the Board agained denied 
the benefit sought on appeal.  Following an appeal to the 
Court, a Memorandum Decision dated from the Court dated in 
February 2007, vacated the Board's decision and the case was 
returned to the Board.


REMAND

A preliminary review of the record discloses a need for yet 
further development prior to final appellate review.  In this 
regard, while the Board endeavored to issue a decision in 
January 2005 following the development accomplished by the RO 
as requested by the Board in the March 2001 remand decision, 
the Court noted that not all of the development requested by 
the Board had been accomplished.  

For example, the Board's March 2001 remand requested the RO 
to attempt to reconstruct the IVM folder and obtain the 
evidence which was previously contained in that folder.  The 
RO was also to keep records of all attempts to reconstruct 
the IVM folder and that if attempts to obtain that evidence 
proved futile, then the RO was to render a finding that 
further attempts to obtain that evidence would be futile.  
The Court noted that the RO made no finding that further 
attempts to obtain the IVM evidence would be futile.  The 
Board does observe that the record does reflect that a 
December 2001 statement from the appellant regarding income 
for 1993 contains a handwritten notation that "this 
information was confirmed with review of the IVM Folder.  The 
exact evidence cannot be duplicated but is accurate."  

Since that notation indicates that the information was 
confirmed with a review of the IVM folder, a folder that was 
previously reported to have been destroyed, this suggests 
that a IVM folder may still exist.  In any event, if the RO 
attempted to reconstruct the IVM folder and was unable to do 
so, as the Court indicatd, the record does not contain a 
finding that further attempts to obtain that evidence would 
be futile.  

The Court also noted that the record contained records which 
were in Spanish, specifically correspondence from Chub 
Securities Corporation and tax return forms submitted by the 
appellant.  Since this case is being returned for further 
development, appellate review would be greatly facilitated 
with the inclusion of a translation of those documents.

Further, the Court noted that the record appeared to contain 
ample evidence that the appellant's income in 1993, 1994, and 
1997 exceeded the maximum pension rate payable, the Court 
found that the Board's determination that the appellant 
received income in excess of the maximum pension rate payable 
in 1995 and 1996 was not supported by the record.  The Court 
noted that Puerto Rico tax return submitted by the appellant 
indicated income of $3,347 in 1995 and $774 in 1996.  

In this regard, the Board would observe that tax returns 
submitted by the appellant are unsigned, which the Board 
would assume would be necessary for a properly completed and 
filed tax return.  As such, the Board believes that the RO 
should undertake an attempt to obtain copies of tax returns 
filed by the appellant from 1993 through 1997 from the Puerto 
Rico Department of the Treasury.  To this end, the RO should 
contact that agency and request an authorization for release 
of tax returns and forward that authorization to the 
appellant for completion and return so as to permit the RO to 
obtain tax years for those years.

Lastly, the Court's Memorandum Decision noted that the Board 
had made reference to the appellant's net worth, which the 
Court found to be unpersuasive, and pointed out that the 
Board had acknowledged that a formal net worth determination 
had not been made by the RO.  Under these circumstances, the 
Board believes that the RO should review the file and 
determine whether a net worth determination is necessary in 
this case.  If so, the appellant should be provided 
appropriate notice prior to rendering any decision.

Therefore, in order to give the appellant every consideration 
with respect to the present appeal, it is the Board's opinion 
that further development of the case is necessary.  This case 
is being returned to the RO via the Appeals Management Center 
(AMC) in Washington, D.C. and the appellant will be notified 
when further action on her part is required.  Accordingly, 
this case is REMANDED for the following actions:

1.  The RO/AMC should again attempt to 
reconstruct the IVM folder as requested 
by the Board in the March 2001 remand, 
and was indicated by a handwritten 
notation on a December 2001 statement 
from the appellant that the information 
had been confirmed with a review of the 
IVM folder.  If attempts to reconstruct 
the IVM folder and obtain the evidence 
previously contained in that folder prove 
futile, the RO should render a specific 
finding that further attempts to obtain 
that evidence would be futile, specifying 
the efforts undertaken to reconstruct the 
folder.

2.  The RO/AMC should translate the 
documents of concern to the Court 
referred to in the Memorandum Decision on 
pages 2 and 4 of that decision, 
specifically correspondence from the 
Chubs Securities Corporation and income 
tax forms submitted by the appellant. 
(Translations of these tax forms maybe 
unnecessary if those forms are obtained 
pursuant to the development requested in 
the third paragraph below, but those tax 
returns my require translation.)

3.  The RO /AMC should contact the Puerto 
Rico Department of the Treasury and 
obtain the necessary authorization or 
release to permit the obtaining of copies 
of the appellant's tax returns dated 
between 1993 and 1997.  That form should 
be sent to the appellant and she should 
be requested to complete and return that 
form, and the RO/AMC should obtain and 
associate tax records for the years 1993 
to 1997 with the claims file.  

4.  The RO/AMC should review the record 
and determine whether a net worth 
determination is necessary in this case.  
If such a determination is necessary, the 
RO/AMC should provide the appellant 
appropriate notice and an opportunity to 
respond before rendering such a decision.

When the development requested has been completed, the case 
should again be reviewed on the basis of the additional 
evidence.  If the benefit sought is not granted, the 
appellant and her representative should be furnished a 
Supplemental Statement of the Case and be afforded a 
reasonable opportunity to respond before the record is 
returned to the Board for further review.

The purpose of this REMAND is to obtain additional 
development, and the Board does not intimate any opinion as 
to the merits of the case, either favorable or unfavorable, 
at this time.  The appellant is free to submit any additional 
evidence and/or argument she desires to have considered in 
connection with her current appeal.  Kutscherousky v. West, 
12 Vet. App. 369 (1999).  No action is required of the 
appellant until she is notified.

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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 
U.S.C. §§ 5109B, 7112).



	                  
_________________________________________________
	M. W. GREENSTREET
	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) (2007).


{'dataset': 'bva_opinions'}