Citation Nr: 1321703	
Decision Date: 07/08/13    Archive Date: 07/18/13

DOCKET NO.  10-00 245A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1. Entitlement to a disability evaluation in excess of 30 percent for migraines.  

2. Whether the recoupment of severance pay by withholding VA disability compensation benefits was proper.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from December 1984 to December 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.  The January 2009 rating decision increased the Veteran's disability evaluation for migraines from noncompensable to 30 percent, effective the date of his claim.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of entitlement to an increased evaluation for migraines is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran received separation pay in the amount of $5248.80 upon his discharge from service in December 1987; this amount was deducted from his VA compensation benefits.


CONCLUSION OF LAW

The recoupment of severance pay by withholding the Veteran's VA disability compensation was proper. 10 U.S.C.A. §§ 1174 , 1212; 38 U.S.C.A. §§ 5107, 7104 (West 2002 and Supp. 2012); 38 C.F.R. § 3.700 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken.  However, in the present decision, the Board has found that, as a matter of law, the Veteran is not entitled to the benefit sought on appeal.  The notice and duty to assist provisions have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-43 (2002).  In such claims where the law is dispositive, the claim must be denied due to a lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  In cases such as this, VA is not required to address the duty to notify or assist a claimant, where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004.

Recoupment of Severance Pay

The recoupment of a veteran's separation pay from his or her VA disability compensation is required by 10 U.S.C.A. § 1174(h)(2), which states that a member who has received separation pay under this section, or severance pay or readjustment pay under any other provision of law, based on service in the armed forces shall not be deprived, by reason of his receipt of such separation pay, severance pay, or readjustment pay, of any disability compensation to which he or she is entitled under the laws administered by VA, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay, severance pay, and readjustment pay received.  

The implementing regulation, 38 C.F.R. § 3.700(a)(5)(i), provides that, "[w]here entitlement to disability compensation was established on or after September 15, 1981, a Veteran who has received separation pay may receive disability compensation for disability incurred in or aggravated by service prior to the date of the receipt of separation pay subject to recoupment of the separation pay.  Where payment of separation pay or special separation benefits under section 1174a was made after September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of separation pay or special separation benefits less the amount of Federal income tax withheld from such pay."  38 C.F.R. § 3.700(a)(5)(i) (2012). 

An opinion of the VA General Counsel, VAOGCPREC 14-92, concluded that, "[i]n accordance with the provisions of 10 U.S.C.A. § 1174 and 38 C.F.R. § 3.700, VA disability compensation should be offset to recoup the amount of special separation benefits received by a former member of the armed forces."  See also VAOGCPREC 12-96.  VAOGCPREC 12-96 held that 10 U.S.C.A. § 1174(h)(2) requires that VA recoup from a veteran's VA disability compensation the amount of "nondisability severance pay" received by the Veteran under section 631 of Pub. L. No. 96-513.

The Veteran was separated from active service in December 1987.  His DD Form 214 indicates that he received separation pay in the amount of $5,248.80.  

The Veteran filed a claim seeking VA compensation for migraines in July 1987.  In an October 1987 rating decision, the RO granted service connection for migraines and assigned an initial noncompensable evaluation.  Migraines are the Veteran's only service-connected disability.  In November 2008, the Veteran filed a claim for an increased evaluation.  In a January 2009 rating decision, the RO increased his disability evaluation for migraines from noncompensable to 30 percent.  In January 2009, the RO informed the Veteran of the rating decision and that VA was withholding benefits equal to the amount of separation pay minus the amount of Federal income tax withheld.  

The recoupment of an amount equivalent to the Veteran's separation pay from his VA disability compensation is required by Congress under 10 U.S.C.A. § 1174(h)(2).  The Board finds that the law, as written by Congress and implemented by VA regulation, has been correctly applied in this case.  The recoupment of the overpayment of VA compensation in the amount of separation pay received ($5,248.80) by withholding in monthly allotments payments of disability compensation benefits, is required by law.  10 U.S.C.A. § 1174; 38 C.F.R. § 3.700(a)(5). 

The Board is sympathetic to the Veteran's situation.  However, 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; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board is ultimately bound by the law passed by Congress, and this decision is unfortunately dictated by the relevant statutes and regulations that were discussed above.  The Board finds that the law as enacted by Congress and implemented by VA regulation, has been correctly applied in this case.  The recoupment of the amount of disability separation pay from payments of VA disability compensation benefits, is required by law.  10 U.S.C.A. § 1174; 38 C.F.R. § 3.700(a)(3).  Thus, as VA does not have any discretion in the recoupment of the separation pay, the claim must be denied for lack of legal merit.  Sabonis, 6 Vet. App. at 430.


ORDER

Recoupment of separation pay was proper; the appeal is denied.


REMAND

While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal.  The following further development is required. 

VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected disability.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect.  See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995).  

The Veteran's most recent VA examination was conducted in January 2009, over four years ago.  The most recent VA treatment records that discuss his migraines are from December 2009.  The most recent private medical records pertaining to his migraines are from February 2009.  

In January 2010, L. M., an educational director at the Veteran's place of employment wrote to VA to explain that the Veteran had a record of pattern absenteeism because of his migraines.  She stated that he had exhausted his sick and personal leave, and was required to take unpaid leave when his migraines prevented him from working.  L. M. specifically stated that the Veteran was otherwise a hard worker with "outstanding" values and a high standard of ethics.  She stated that because the Veteran was a loyal employee who produced quality work, the employer had been working with him about his missed time.  In his August 2010 VA Form 9, the Veteran stated that he attempted to apply for leave under the Family Medical Leave Act, but that his employer was too small to qualify.  The Veteran was concerned that he was going to lose his job.  

There is no medical evidence of record that addresses the Veteran's current symptoms.  It is clear from L. M.'s statements that the Veteran's migraines impact his ability to work.  Private medical records from Dr. D. S. note "daily" headaches.  The Veteran reported to the January 2009 VA examiner that "most" of his headaches were prostrating.  However, the examiner concluded that his functional impairment was "moderate" during a flare up and "mild" otherwise.  

The record is not sufficient for the Board to ascertain the Veteran's disability picture after approximately January 2009.  Therefore, a new examination is warranted.  Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the Board may not make use of its own unsubstantiated medical conclusions); 38 U.S.C.A. § 5103A(d). 

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an examination with an appropriate clinician.  

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The purpose of the examination is to determine the current severity of the Veteran's migraines, and their impact on his employability and daily activities. 

d) The examiner must determine whether the Veteran remains employed and, if not, whether he was terminated from his employment due to absenteeism caused by his migraines.  

e) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue contained in the purpose of the examination, as noted above. 

2.  After the above has been completed, the RO must review the claims file and ensure that the foregoing development action has been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 

Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).







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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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs