**UNITED STATES COURT OF VETERANS APPEALS**

No. 92-794

[Richard P. Shoen, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Argued March 14, 1994 Decided May 19, 1994 )

*Joseph A. Davies* for appellant.

*Michele Russell Katina,* with whom *Mary Lou Keener*, General Counsel,
*Norman G. Cooper*, Assistant General Counsel, and *Andrew J. Mullen*,
Deputy Assistant General Counsel, were on the brief, for appellee.

Before HOLDAWAY, IVERS, and STEINBERG, *Judges*.

HOLDAWAY, *Judge*: Appellant, Richard P. Shoen, appeals a March 9, 1992,
decision of the Board of Veterans\' Appeals (BVA or Board) which found
that appellant\'s income was excessive for the receipt of pension
benefits effective May 1, 1991. *Richard P. Shoen*, BVA 92-\_\_\_\_\_
(Mar. 9, 1992). The Court will dismiss the appeal.

**I. FACTS**

In a February 1991 rating decision, appellant was found to be
permanently and totally disabled for VA pension purposes. The effective
date of his pension award was April 1990. Appellant received and
accepted his last pension payment on April 1, 1991. In early April 1991,
appellant received a lump-sum check from the Social Security
Administration (SSA) in the amount of \$27,650.00, which represented
accrued monthly Social Security disability payments dating from July
1985. Appellant photocopied the check, and typed a note, dated April 8,
1991, stating he wished to renounce his VA pension benefits for one
month. The note read:

> Attached is \[a\] copy of \[my\] lump\[-\]sum Social Security
> \[award\]. I wish to renounce benefits for 1 month so as not to have
> this lump sum count against me. I have not yet received my SSA letter,
> but believe that I was told by my worker that it would be \$604/mo. I
> will submit the SSA letter as soon as \[it is\] received, \[and will\]
> advise \[you\] of any remaining monies \[and\] projected interest
> income (if any).

The date of the SSA \"Notice of Award\" was April 10, 1991.

On April 19, 1991, the VA Regional Office (RO) in Denver, Colorado, sent
appellant a letter notifying him that the VA had terminated his pension
award because the RO had received evidence showing that \"\[y\]our
family income or net worth has changed.\" The RO informed appellant that
the evidence supporting the termination consisted of the lump-sum check
from SSA, as well as a monthly payment of \$604.00 from SSA which he was
receiving. The RO informed appellant that this put his countable annual
income at \$34,294.00, well above the maximum allowable by law of
\$9,343.00. Appellant filed his Notice of Disagreement (NOD) as to the
termination on May 6, 1991. Concurrently with the NOD, appellant filed a
reapplication for pension benefits, acknowledging that he could not, as
he had attempted to do, \"renounce\" benefits and reapply for benefits
in the same document. Appellant received a VA pension check dated May 1,
1991. Appellant returned the check to the VA and received a \"Receipt
for Returned Treasury Check\" dated May 6, 1991. Appellant filed an
appeal to the BVA in July 1991. In March 1992, the Board found that
appellant\'s retroactive SSA award was countable as income in
determining his VA pension benefits and, therefore, that his VA pension
benefits were properly terminated with an effective date of May 1, 1991.
The Board found that appellant\'s pension had to be terminated effective
the end of the month pursuant to 38 C.F.R. § 3.660(a) (1993), which
provides that a reduction or discontinuance of benefits will be
effective the end of the month in which the increased income was
received. The Board reasoned that, while appellant subsequently
attempted to renounce his benefits, there can be no renouncement of a
benefit which already had been terminated. The Board concluded that
appellant had no entitlement to benefits beginning May 1, 1991, and that
any attempt to renounce such benefits was of no effect.

**II. ANALYSIS**

This appeal is from a BVA decision affirming an RO adjudication which
terminated, as of May 1991, an improved pension that had been awarded to
appellant in 1990. Appellant does not contest the correctness of the
termination of the pension nor does he claim that he has been denied any
monetary benefits due him arising out of the terminated pension. In
point of fact, he maintains that by sending him a payment on May 1,
1991, the VA attempted to *overpay* him for the terminated pension. The
only \"adverse\" decision that appellant can point to is a contingent
one; i.e., by making the effective date of his putative renouncement
later rather than earlier, the RO *may* have prevented him from
shielding the lump-sum SSA payment from consideration as income on his
subsequent reapplication for pension.

In short, this appeal does not arise out of any decision that is adverse
to appellant in the adjudicative action to which he filed his NOD, the
termination of the pension, but is premised entirely on a *possible*
adverse action on the subsequent reapplication. However, as the law
makes clear, this subsequent reapplication is a new and original claim.
38 U.S.C. § 5306(b). The latter claim is not before this Court; nor from
the record before us can it be determined whether this new claim has
been, or is being, adjudicated. It is fundamental that in order to
obtain appellate review there must be a case or controversy, *see*
*Waterhouse v. Principi*, 3 Vet.App. 473 (1992); i.e., the appealing
party must be adversely affected by the decision to which he takes
exception (*see* 38 U.S.C. § 7266(a)).

We find in this case that there is no adverse decision on which
appellant may base an appeal. Any opinion by this Court as to the
possible adverse effect of the present BVA decision on the later, and
wholly discrete, claim of May 3, 1991, would be advisory as to a future
adjudication and beyond our jurisdiction. *See generally* 38 U.S.C. §
7252. It is noteworthy that in his brief appellant\'s prayer for relief
asks that the reapplication be treated as a new application (which, of
course, it is), and that the Court rule, *as to this new claim*, that
the SSA payment not be considered as income. It is hard to imagine a
more specific request for an advisory opinion than that.

Accordingly, the appeal will be dismissed. The Court does note that
there is some doubt as to whether the \"new\" claim has been or is being
adjudicated. If it is not, it should be. In the adjudication of that
claim, the issues of whether appellant\'s attempted renouncement was a
\"total\" renouncement pursuant to 38 U.S.C. § 5306 and 38 C.F.R. §
3.106, the effective date of any renouncement, and the effect of the
foregoing on appellant\'s eligibility for a \"new\" pension
notwithstanding his lump-sum receipt of SSA benefits may then be fully
litigated.

The appeal is dismissed. *See Waterhouse, supra.*