Citation Nr: 1338477 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 13-00 434A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether it was proper to withhold VA compensation in lieu of military retired pay from November 1, 2007, until December 1, 2008. ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from November 1951 to November 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, withholding the Veteran's compensation in response to overpayment from November 1, 2007, through December 1, 2008. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran received retired pay benefits (which are not administered or paid by VA) from November 1, 2007, through December 1, 2008. 2. The Veteran was not legally entitled to concurrent receipt of VA compensation benefits and retired pay from November 1, 2007, through December 1, 2008. 3. The Veteran does not have a combined 50 percent evaluation for his service-connected disabilities. 4. VA was not solely responsible for the overpayment of benefits. CONCLUSION OF LAW The withholding of VA benefits from November 1, 2007, through December 1, 2008, was proper. 38 U.S.C.A. §§ 5302, 5304 (West 2002); 38 C.F.R. §§ 1.962, 3.700, 3.750, 3.751. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimant's in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board notes that the provisions of law and regulations set forth notice and assistance requirements on the part of VA, in the adjudication of certain claims, are not applicable to claims involving the validity of the creation of an overpayment of compensation benefits or requests for waiver of recovery of overpayments. Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132 (2002). Analysis The Veteran contends that his VA compensation should not have been withheld to make up for previous overpayment. Specifically, the Veteran has argued that when he first started receiving VA compensation, it was already taken out of his military retirement as a VA waiver. However, as discussed below, the evidence does not support the Veteran's argument. As such, the withholding of the Veteran's benefits was proper in this case, as the Veteran was not legally entitled to the receipt of both military retirement and VA compensation, and, this overpayment was incurred due to the actions of the Veteran. The preliminary issue of the validity of a debt is a threshold determination that must be made in a benefits overpayment debt collection matter. Schaper v. Derwinski, 1 Vet. App. 430 (1991). An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C.A. § 5302; 38 C.F.R. § 1.962. For a determination that the overpayment was not properly created, such that the debt was not valid, it must be established that the appellant was either legally entitled to the benefits in question or, if the appellant was not legally entitled, then it must be shown that VA was solely responsible for the appellant being erroneously paid benefits. According to 38 C.F.R. § 3.700, not more than one award of pension, compensation or emergency officers' regular or reserve retirement pay will be made concurrently to any person based on his or her own service except as provided in § 3.803 relating to naval pension and § 3.750(c) relating to waiver of retirement pay. According to 38 C.F.R. § 3.751(c), a waiver of military retired pay is necessary in order to receive disability compensation when a veteran is eligible for both military retired pay and disability compensation but is not eligible under paragraphs (b)(1) or (b)(2) of this section to receive both benefits at the same time. A veteran who is entitled to military retired pay and disability compensation for a service-connected disability rated 50 percent or more, or a combination of service-connected disabilities rated 50 percent or more, under the schedule for rating disabilities, is entitled to receive both payments subject to the phase-in period described in paragraph (c) of this section. 38 C.F.R. § 3.750(b)(1). Review of the record reflects that the Veteran has received VA compensation since November 1, 2007. In February 2011, VA was informed by the Defense Finance and Accounting Services (DFAS) that they began withholding retirement benefits for VA compensation on December 1, 2008. As a result, the Veteran was in receipt of an overpayment since the start of VA benefits on November 1, 2007, and through the date at which his benefits were adjusted - December 1, 2008. In order for the Board to determine that the overpayment was not properly created, such that the debt was not valid, it must be established that the Veteran was legally entitled to the benefits in question, or, if the Veteran was not legally entitled, then it must be shown that VA was solely responsible for the Veteran being erroneously paid benefits. The Board finds that receipt of both military retired pay and VA compensation was not permitted in this case, as the Veteran did not meet any statutory or regulatory criteria for concurrent receipt of retired pay and VA compensation benefits. See 38 C.F.R. § 3.750 (2013) (authorizing receipt of both military retired pay and VA compensation if a Veteran's disability rating is 50 percent or higher). The Board has confirmed that duplicate retired military pay benefits and VA compensation benefits were precluded by law in this case, as the Veteran was not in receipt of VA disability compensation benefits at a rate of 50 percent or higher. Therefore, the Veteran should not have received VA compensation benefits in addition to the military retirement benefits that were being paid. In addition, the evidence fails to show that VA was solely responsible for the Veteran receiving additional benefits. In his original application for benefits received in October 2007, the Veteran indicated that he was in receipt of retirement pay. Line 21e instructed the Veteran to "Sign here if you want to receive military retired pay instead of VA compensation." The Veteran did not sign this line, and as a result, he received VA compensation in addition to his retirement pay. As such, the evidence clearly demonstrates that VA was not solely responsible for the Veteran incurring this debt. In summary, the evidence demonstrates that the Veteran received retirement pay and VA compensation. Nothing of record suggests he was legally entitled to receive both benefits at the same time. The evidence also demonstrates that the Veteran is responsible for the incurrence of this overpayment. As such, the Board finds that the withholding of VA compensation in lieu of military retired pay from November 1, 2007, through December 1, 2008, was proper. ORDER The withholding of VA compensation in lieu of military retired pay from November 1, 2007, through December 1, 2008, was proper. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs