Citation Nr: 1306952 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 07-19 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to retroactive election of payment of VA disability compensation in lieu of military retirement pay, effective March 1, 1969. REPRESENTATION Appellant represented by: Charles J. Filardi, Jr., Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In January 2007, a hearing was held at the RO before a Decision Review Officer (DRO). A transcript of this hearing has been added to the record. In December 2009, the Board issued a decision denying the Veteran's claim of entitlement to retroactive election of payment of VA disability compensation in lieu of military retirement pay, effective March 1, 1969. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2010, the Court Clerk granted a Joint Motion for Remand, vacating the Board's December 2009 decision and remanding the case to the Board. In August 2011, the Board remanded this matter for additional development. FINDINGS OF FACT 1. A March 1969 RO rating decision granted service connection at a 100 percent disability rating for residuals of multiple gunshot wounds, and granted entitlement to Special Monthly Compensation (SMC) under subsection (k), effective from February 21, 1969. 2. The Veteran did not file a waiver of military retirement pay in lieu of VA disability compensation within 1 year of notification of the RO's March 1969 rating decision, which was sent later that same month. 3. In a July 2005 decision, the RO found clear and unmistakable error in the March 1969 rating decision in not having granted SMC under subsection (l) for the anatomical loss of the left foot and loss of use of the right foot. The RO awarded SMC at the rate prescribed under subsection (l) retroactive to February 21, 1969. CONCLUSION OF LAW Entitlement to a retroactive award of VA disability compensation in lieu of retired pay prior to May 1, 2005 is not warranted. 38 U.S.C.A. §§ 3104, 3105 (1969); 38 C.F.R. § 3.750 (1969). REASONS AND BASES FOR FINDINGS AND CONCLUSION Resolution of this appeal rests solely on the interpretation of the law, rather than a dispute as to the underlying facts of this case. Specifically, the outcome in this case is dictated by facts which are established by the record. No reasonable possibility exists that any additional assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA's duties to notify and assist are not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Accordingly, the Board finds no prejudice toward the Veteran in proceeding with the adjudication of his claim. In August 2011, the Board remanded this matter for the RO to readjudicate the Veteran's claim in light of the additional evidence and argument received since the RO's most recent statement of the case (SOC), issued in May 2007. In September 2012, the RO issued a supplemental SOC which addressed the additional evidence and arguments presented. Accordingly, the RO has complied with the Board's August 2011 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In rendering this decision, the Board does not find any merit to the request made by the Veteran and his representative to recharacterize the issue on appeal herein. According to the Veteran's VA Form 9, he is seeking "payment of retroactive benefits for the difference between the amount of VA disability compensation I am entitled to ... and the retired pay I received between February 21, 1969 and July 31, 2005." At its core, the Veteran is now seeking to obtain increased benefits through payment of VA disability compensation. As he was previously receiving retirement pay throughout this time frame, his claim is accurately encompassed by the issue as stated, specifically "[e]ntitlement to retroactive election of payment of VA disability compensation in lieu of military retirement pay, effective March 1, 1969." Contrary to assertions made by the Veteran's representative in an October 2012 letter, his argument concerning how the issue on appeal should be stated in this case was not a point of contention within the Joint Motion filed before the Court. The Joint Motion was confined to a discussion of "whether the award letter and the attached election form were sent to Appellant's current address, and what impact that would have on this case." The basis upon which the Veteran contends that retroactive election is warranted for VA disability compensation over military retirement pay is that RO rating decisions have adjusted his level of VA disability compensation retroactively, and that the option to elect said compensation should be made retroactive as well. In support of his claim, the Veteran contends that he did not receive notification of the RO's March 1969 rating decision. He further contends that if he had received such notice, it would not accurately reflect the benefits to which he has since been found entitled. An August 1968 RO rating decision, which addressed the Veteran's entitlement to Chapter 31 benefits, listed the Veteran's address as being on Peabody Terrace in Cambridge, Massachusetts. In March 1969, the RO received the Veteran's application for compensation or pension, VA Form 21-526e. The application form had been signed by the Veteran back in August 1968. It did not reference any mailing address for the Veteran. In a March 1969 rating decision, the RO granted service connection for residuals of multiple gunshot wounds, with an initial 100 percent disability rating, effective from February 21, 1969. The service-connected gunshot wound residuals included below the knee amputation of the left lower extremity, and a fracture of the right femur. The Veteran was also awarded SMC under 38 U.S.C.A. § 314 (1969) subsection (k) due to anatomical loss of one foot, effective from February 21, 1969. Notification of this decision was sent to the Veteran that same month using the address on Peabody Terrace in Cambridge, Massachusetts. The notification award letter indicates that the Veteran would be entitled to received $447.00 per month, beginning on February 21, 1969; and that this amount would be increased to $472 per month if the Veteran submitted certified records of his having been married. It also states that enclosed was VA Form 21-651 (Election of Compensation in Lieu of Retired Pay or Waiver of Retired Pay to Secure Compensation or Pension From Veterans Administration). The back of the notification letter included instructions for making an election for VA compensation or waive of retirement pay. In May 1969, the RO received a copy of DD Form 1285 (Request for VA Compensation or Pension Information) sent from the Retired Pay Division of the U.S. Army. The form indicated that the Veteran had retired from active duty service for reason of medical disability, and that he was entitled to receive retired pay in the amount of $436.25. The portion of the form to be completed by the Service Department listed an address for the Veteran located on Penwick Road, Wakefield, Massachusetts. It requested that the RO furnish information on whether the Veteran had elected VA benefits. The RO completed and returned this form to the Retired Pay Division, stating that "Form 21-651 was submitted to the Veteran on March 13, 1969 and he has not waived his retirement pay." There is no further documentation on file as to the Veteran's non-election of VA benefits in connection with the original March 1969 RO rating decision. In April 2005, the Veteran filed a claim alleging clear and unmistakable error (CUE) in the prior March 1969 rating decision, based upon the fact that his award of SMC did not properly take into account the loss of use of both feet. As a result, the Veteran indicated, he should have been entitled to SMC at the higher rate prescribed at 38 U.S.C.A. § 1114(l) (previously found at 38 U.S.C.A. § 314) rather than at the rate under subsection (k) for loss of one foot. In a July 2005 rating decision, the RO granted the Veteran's claim for CUE in the prior March 1969 RO rating decision to the extent it failed to grant SMC under subsection (l) for the anatomical loss of the left foot and loss of use of the right foot. It was observed that service treatment records provided clear evidence of a right sciatic nerve injury with no sensation below the knee and right foot drop. Consequently, the RO awarded SMC at the rate prescribed under subsection (l) retroactive to February 21, 1969. The July 2005 rating decision took other adjudicative action, granting service connection for a lumbosacral spine condition, and a 10 percent rating effective April 25, 2005. The RO also independently evaluated each of the Veteran's service-connected gunshot wound residuals, and the combined evaluation remained at the existing 100 level. Through an August 2005 award letter, the RO notified the Veteran of its decision. The RO further indicated that as the Veteran's VA disability compensation now exceeded his military retirement pay, he would receive monthly disbursements of the former rather than the latter. The VA disability compensation payments were to be made effective May 1, 2005. There would initially be withholding from the amount of retirement pay the Veteran had already received, but after August 1, 2005 the payments would increase to the full amount of VA compensation that was due to him. In October 2005, the Veteran filed a Notice of Disagreement with the July 2005 rating decision, requesting retroactive payment of benefits back to March 1, 1969 for the difference between VA disability compensation (including SMC at the subsection (l) rate) and his Army disability retirement pay. The Veteran contended that but for the CUE in the March 1969 RO rating decision, VA disability compensation would have exceed military retirement pay and he would have elected a waiver of military retirement pay and chosen to have received VA benefits. In January 2007, the Veteran testified before a DRO at the RO. He testified that upon his separation from service, he was advised (presumably by the Army) of his right to election compensation from VA or the United States Army, and that he could change this election at any time. He further testified that he checked with VA from time to time as to whether or not it would be beneficial to make this election. Finally, he testified that he determined that his VA compensation had been less than his retirement from the service, "which is why I made that choice" to not elect VA compensation benefits. He then argued that his notification period should begin again based upon the changes made as a result of the RO's August 2005 CUE decision. Applicable law at the time of the March 1969 RO rating decision at issue precluded receipt of VA disability compensation concurrent with military retirement pay. 38 U.S.C.A. §§ 3104, 3105 (1969); 38 C.F.R. § 3.750 (1969). Specifically, 38 C.F.R. § 3.750 provided in pertinent part that: (a) General. Except as provided in paragraphs (c) of this section and § 3.751, any person entitled to receive retirement pay based on service as a member of the Armed Forces . . . may not receive such pay concurrently with benefits payable under laws administered by the Department of Veterans Affairs. The term "retirement pay" includes retired pay and retainer pay. (b) Election. An officer or enlisted man entitled to retirement pay as well as pension or compensation may elect which of the benefits he desires to receive. An election of retirement pay does not bar him or her from making a subsequent election of the other benefit to which he or she is entitled. An election filed within 1 year from the date of notification of Department of Veterans Affairs entitlement will be considered as "timely filed" for the purpose of § 3.401(e)(1). If the veteran is incompetent, the 1-year period will begin on the date notification is sent to the next friend or fiduciary. In initial determinations, elections may be applied retroactively if the claimant was not advised of his or her right of election and the effect thereof. (c) Waiver. Any retired member of the Armed Forces...may receive compensation upon filing with the service department concerned a waiver of so much of his retirement pay as is equal in amount to the pension or compensation to which he is entitled. The pertinent regulation has since been amended effective December 9, 1976 to reflect the provision under 38 C.F.R. § 3.750(c) that "[i]n the absence of a specific statement to the contrary, the filing of an application for compensation by a veteran entitled to retirement pay constitutes such a waiver." Thereafter, Congress enacted Section 641 of the National Defense Authorization Act for Fiscal Year 2004 which permits certain veterans entitled to military retirement pay and receiving disability compensation for a service-connected disability to receive concurrently both retired pay and VA disability compensation. See Pub. L. No. 108-136, 117 Stat. 1392 (2003). To implement the new law, VA has thoroughly revised 38 C.F.R. § 3.750, effective November 20, 2006, to clarify who is eligible for concurrent receipt of disability compensation and military retired pay, who must waive military retired pay to receive disability compensation, and how to file such a waiver. The Board recognizes that this change in the policy towards concurrent receipt of military retired pay and VA compensation could have an impact upon the Veteran's current benefits entitlement. That notwithstanding, as the issue presented in this case is one of retroactive compensation, the Board's focus must be limited to the law and regulations as they were previously in effect. The scope of analysis is limited to the law governing benefit elections at the time of the March 1969 rating decision. The subsequent amendments thus are not dispositive in this particular case. Following the Board's December 2009 decision, the Veteran alleged that he did not receive the RO's March 1969 rating decision and notification letter. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." INS v. Miranda, 459 U.S. 14 (1982). This presumption has been applied "to all manner of VA processes and procedures." Woods v. Gober, 14 Vet. App. 214 (2000). The presumption attaches when VA mails notice of a determination to a Veteran at his last known address of record. Id., see also Mindenhall v. Brown, 7 Vet. App. 271 (1994). The presumption of regularity may be rebutted with "clear evidence to the effect that [VA's] regular mailing practices [were] not regular or that they were not followed." Woods, 14 Vet. App. 214; Mindenhall, 7 Vet. App. 271; see also Schoolman v. West, 12 Vet. App. 307 (1999). One example of such clear evidence is evidence that notice of a determination was mailed to an incorrect address. Piano v. Brown, 5 Vet. App. 25 (1993). Another example is evidence that notice of a determination mailed to a particular address was returned as undeliverable and that other possible and plausible addresses existed. Cross v. Brown, 9 Vet. App. 18 (1996). A mere assertion by the Veteran that notice of a determination was not received, however, does not constitute such clear evidence. See Schoolman, 12 Vet. App. at 309; YT v. Brown, 9 Vet. App. 195 (1996); Mason v. Brown, 8 Vet. App. 44 (1995); Butler v. Principi, 244 F.3d. 1337 (Fed. Cir. 2001). After reviewing the Veteran's claims file, the Board finds that the presumption of regularity has not been rebutted. The notification letter concerning the RO's March 1969 rating decision was sent to the Veteran's address of record at that time; and the Veteran is presumed to have received such notification. Prior to the March 1969 rating decision, the RO issued an August 1968 rating decision, which addressed the Veteran's entitlement to Chapter 31 benefits. The August 1968 rating decision listed the Veteran's address of record as being on Peabody Terrace in Cambridge, Massachusetts. While the evidence of record does not document exactly how this mailing address came into use by the RO, it presumably was a mailing address supplied by the Veteran. Moreover, the Veteran's representative, in an October 2012 letter, indicated that the August 1968 rating decision "was actually received and considered by the Veteran." Thus, the mailing addressed used by the RO at that time was not only the Veteran's mailing address of record, but it is also shown to have been valid. In March 1969, the RO received the Veteran's application for compensation or pension, VA Form 21-526e. The application form did not reference any other mailing address for the Veteran. In an October 2012 letter, the Veteran's representative noted that the "Veteran states unequivocally that he never received" notification concerning the March 1969 rating decision. The Veteran's representative goes on to report that the mailing address used by the RO on Peabody Terrace was not the Veteran's mailing address on March 11, 1969, but "was actually temporary student housing that was being provided to the Veteran's spouse while the Veteran was still confined to the hospital at Fort Devens." The argument presented by the Veteran, that an incorrect address was used in mailing the notification letter at issue, ignores the fact that the Veteran is responsible for informing VA of any changes to his mailing address. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (finding that the burden is on the Veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him). Having received the earlier August 1968 rating decision, the Veteran was aware of the mailing address being used for him by VA, and there is no evidence of record that he supplied any other mailing address to the RO during this time frame. There is also no evidence indicating that the March 1969 notification letter had been returned as being undeliverable. Finally, the Veteran's allegation of not having received the notification letter contradicts his prior testimony in this matter. At his January 2007 DRO hearing, the Veteran testified that he had been informed (presumably by the service department) at the time of his separation from service of his right to elect compensation from either VA of the United States' Army; that he was advised to check with VA from time to time as the whether it would be beneficial to do so; and that he did in fact do so. He further testified that VA compensation at the time of his retirement would have been less per month, "which is why I made that choice." Without knowledge of the benefits granted within the March 1969 rating decision, the Veteran could not have compared the two compensation choices. Moreover, he would not have known that a "choice" between the two forms of compensation was even needed. Hence, the Veteran is shown to have had actual knowledge of the award granted within the March 1969 rating decision. Given the RO's use of a mailing address which is shown to have been valid in August 1968, the Veteran having knowledge that VA was using this mailing address for him at that time, the failure of the Veteran to provide any updated address in the months that followed, the lack of any indication that the March 1969 notification letter had been returned, and the Veteran's inconsistencies as to having not received notification of the March 1969 rating decision versus his having made a knowledgeable choice concerning the benefits in question, the Board finds the Veteran's allegations that he did not receive notification concerning the March 1969 rating decision to be not credible. The Board finds that the evidence of record establishes that the Veteran received the March 1969 notification concerning the RO's March 1969 rating decision. Based on the governing law when the Veteran was originally awarded VA compensation benefits in March 1969, he had within 1 year to file an election of VA disability compensation over military retirement pay, and there is essentially no material dispute that he did not file such a waiver of military retired pay. The Veteran did not subsequently file any additional claim for VA compensation benefits from December 1976 up until April 2005. He thereby did not change his status as receiving military retired pay by virtue of the 1976 regulatory amendment that recognized a VA compensation claim as a waiver of retired pay, where VA compensation represented the greater benefit. Under applicable law, therefore, VA properly did not disburse compensation benefits to the Veteran, in lieu of his retirement benefits. The Veteran now contends that the RO's determination of CUE in the March 1969 rating decision that retroactively increases his VA disability compensation award should permit him a retroactive election of benefits. Upon review of all applicable legal authority, the Board can find no provision that would permit such a retroactive election. Rather, the regulation is clear in specifying that the Veteran had within 1 year to elect VA benefits, and not later. To hold otherwise would be contrary to the expressly provided scheme for the adjudication of VA compensation and pension benefits claims. Having opted out of the regulatory scheme for receipt of VA compensation in March 1969, there was the implicit possibility that VA compensation benefits available for one reason or another might increase over time, perhaps due to an increased disability rating from worsening of service-connected disability, or in this case, by reason of a CUE claim in a former RO rating decision. Without a timely election of VA disability compensation however, it could not be expected that the Veteran would benefit from this type of determination. While the finding of CUE in this case presents the slightly different circumstance in that the RO has acknowledged a prior adjudicative mistake, this cannot be outcome determinative where the claimant has already opted out of the VA compensation benefits system during the pertinent time frame. The Veteran's contentions in this case have clearly raised underlying fairness and equity issues in denying retroactive election. Nevertheless, there is no provision under VA law that indicates a retroactive election of VA compensation is available as a means to circumvent the prescribed 1 year limitation on an election. There is also no legal precedent which permits retroactive election as part of the administration of VA disability compensation benefits. Rather, the applicable law directly denotes the circumstances under which an election is available in all instances involving awards of VA disability compensation. VA regulations expressly prescribe the procedures for determining a claimant's decision on election of benefits. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2012). See also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been held that the authority to award equitable relief under 38 U.S.C.A. § 503(a) is committed to the discretion of the Secretary of VA, and that the Board is without jurisdiction to consider that which is solely committed to the Secretary's exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). In conclusion, there is simply no basis under the law to allow for retroactive election of VA disability compensation beyond a 1 year timeframe. This claim must therefore be denied as a matter of law. ORDER The claim for retroactive election of payment of VA disability compensation in lieu of military retirement pay, effective March 1, 1969, is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs