Citation Nr: 1319668 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-10 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to payment prior to May 12, 2007, of compensation based on a 10 percent disability evaluation assigned for tinnitus, to include payment prior to recall to active duty on March 15, 2003, and, following separation from that service, prior to recall to active duty on August 5, 2005. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty for training (ACDUTRA) from March 1986 to July 1986 and January 24, 2002, to March 1, 2002, and served on active duty from April 1989 to March 1992, from March 15, 2003 to August 22, 2004, and from August 5, 2005, to May 11, 2007. He had reserve component service from April 1992 to May 2007 with additional periods of ACDUTRA and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2012, the Board remanded the issue remaining on appeal for additional development. The issue of entitlement to service connection for benign positional vertigo was also remanded, but was resolved by a January 2013 rating decision. FINDING OF FACT The evidence demonstrates service connection was established for tinnitus effective from August 15, 2001, and that the Veteran had continuous active duty and reserve component service for which he was paid from that date until his retirement in May 2007. CONCLUSION OF LAW The Veteran's VA compensation payments were properly discontinued during the period from August 15, 2001, to May 11, 2007, while he received active service pay. 38 C.F.R. § 3.654(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate a claim by correspondence dated in May 2007. Although the issue was previously denied as an abandoned claim, the evidence demonstrates that his claim must be denied as a mater of law. Additional notice as to more specific VA duties to notify and assist would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). VA law prohibits the receipt of disability compensation benefits for any period for which the person receives active service pay. 38 U.S.C.A. § 5304(c) (West 2002 & Supp. 2012), see also 10 U.S.C.A. § 12316 (West 2012). Regulations provide, generally, that pension, compensation, or retirement pay will be discontinued for any period for which a veteran received active service pay and that the term active service pay means pay received for active duty, active duty for training or inactive duty training. 38 C.F.R. § 3.654(a) (2012). A Reservist may, however, waive pension, compensation, or retirement pay for periods of field training, instruction, other duty or drills. 38 C.F.R. § 3.700 (2012). Drill pay (ACDUTRA or INACDUTRA) cannot legally be paid concurrently with VA compensation benefits and a veteran must waive either VA benefits or drill pay each year in which reserve or guard pay is received. See VA Adjudication Procedures Manual (M21-1MR), Part III, subpart v, Chapter 4, Section C. The evidence in this case shows the Veteran submitted his original application for VA service connection compensation in August 2001. In that application he reported that he left National Guard service on April 18, 1989, and that he was not assigned to an active reserve unit. Correspondence from the Veteran's National Guard unit dated in September 2002 noted he was a current member of the Missouri Army National Guard in good standing and drilling. A March 2003 rating decision, in pertinent part, established service connection for tinnitus and assigned a 10 percent rating effective from August 15, 2001. VA correspondence dated March 31, 2003, however, notified the Veteran that his claim for service-connected disability compensation had been disallowed because of evidence showing he had returned to active duty. He was requested to provide information indicating the date he returned to active service. The Veteran's correspondence dated in May 2007 was accepted as a claim for recommencement of VA compensation payments. An October 2007 rating decision, among other things, reinstated a 10 percent rating for tinnitus effective from May 12, 2007. In subsequent statements in support of his claim the Veteran asserted that retroactive compensation payments were warranted effective from August 15, 2001, minus the time he served on active duty. Records show the Veteran had INACDUTRA service from August 15, 2001, to January 23, 2002, ACDUTRA service from January 24, 2002, to March 1, 2002, INACUTRA service from March 2, 2002, to March 14, 2003, active service (mobilized under Title 10 (Iraq)) from March 15, 2003, to August 22, 2004, INACDUTRA service from August 23, 2004, to August 4, 2005, and active service (mobilized under Title 10 (Iraq)) from August 5, 2005, to May 11, 2007. In correspondence dated in February 2008 the Veteran acknowledged that he had been in the National Guard when he submitted his original claim in August 2001 and that he had remained in the National Guard until May 2007. There is no indication he was not paid during his National Guard service. Based upon the evidence of record, the Board finds that service connection was established for tinnitus effective from August 15, 2001, and that the Veteran had continuous active duty and reserve component service for which he was paid from that date until his retirement in May 2007. The evidence shows he received active service pay during the period from August 15, 2001, to May 11, 2007, which included pay for National Guard ACDUTRA and INACDUTRA service from August 15, 2001, to March 14, 2003, and from August 23, 2004, to August 4, 2005. There is also no apparent basis under applicable law for a retroactive waiver of his National Guard pay during these periods of ACDUTRA or INACDUTRA service. Under the provisions of 38 C.F.R. § 3.654(a) the Veteran's VA compensation payments were properly discontinued during the period from August 15, 2001, to May 11, 2007, while he received active service pay. There is no dispute as to the material facts in this case and the appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to payment prior to May 12, 2007, of compensation based on a 10 percent disability evaluation assigned for tinnitus, to include payment prior to recall to active duty on March 15, 2003, and, following separation from that service, prior to recall to active duty on August 5, 2005, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs