Citation Nr: 1626741 Decision Date: 07/05/16 Archive Date: 07/14/16 DOCKET NO. 08-17 586 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected left ankle disability. 2. Whether reduction of the Veteran's disability compensation payments based on receipt of drill pay in fiscal year 2009 was proper. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from February 1981 to September 1992, from December 1995 to August 1996, and from June 2003 to March 2004. He also had a verified period of active duty for training (ACDUTRA) from August to September 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2006 and June 2013 decisions of the Houston, Texas VA RO. In June 2012, a Board hearing on the issue of service connection for a low back disability was held before a Veterans Law Judge (VLJ) who has since retired. A transcript of this hearing is of record. In October 2012 and May 2014, the Board remanded the Veteran's claim seeking service connection for a low back disability for further development. In October 2014, the Board sent the Veteran a letter inquiring whether he desired a new Board hearing in conjunction with his claim of service connection for a low back disability, since the VLJ who conducted his June 2012 hearing was no longer employed by the Board. In October 2014, the Veteran responded that he wished to appear at another hearing. In December 2014, the Board remanded the appeal to schedule the Veteran for a new hearing. In February 2016, the Veteran appeared at a hearing before the undersigned on both issues. A transcript of this hearing is of record. At the hearing, the undersigned granted a 60-day abeyance period for the submission of additional evidence to support his claims. The Veteran also waived initial Agency of Original Jurisdiction (AOJ) review of any additional evidence added to the record since issuance of the most recent statement of the case or supplemental statement of the case for each issue. In May 2016, the Veteran submitted additional evidence. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's lumbar spine disability was aggravated by an injury that occurred during an August 2005 period of ACDUTRA. 2. The Veteran accepted a Voluntary Separation Incentive (VSI) annuity payment upon his discharge from active service and transfer into the reserve service in 1992. 3. The Veteran received military drill pay for 97 days in fiscal year 2009, during which time he was also receiving VA disability compensation benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The offset of 97 days of VA disability compensation benefits due to receipt of military drill pay for fiscal year 2009 was proper. 38 U.S.C.A. §§ 5107, 5304(c) (West 2014); 38 C.F.R. §§ 3.654, 3.700 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Any error in notice or assistance on the issue of service connection for a lumbar spine disability is harmless given the favorable determination being made. Regarding the claim of whether the reduction of VA disability compensation payments was proper, notice and assistance provisions are not applicable in cases such as this where resolution of the claim is as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). Accordingly, VA's duties to notify and assist are not applicable to this issue and need not be addressed. B. Legal Criteria and Analysis 1. Service Connection for a Lumbar Spine Disability The Veteran has contended that his lumbar spine disability is related to an injury incurred during an August 2005 period of ACDUTRA. He has also raised a theory that the disability is secondary to his service-connected left ankle disability. Since his claim is being granted based on the theory of entitlement that it was aggravated during a period of ACDUTRA, no further discussion is required regarding the secondary service connection theory of entitlement. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The term "active service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. §§ 101(24); 38 C.F.R. § 3.6(a). A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or, for certain chronic diseases detailed in 38 C.F.R. § 3.309(a), that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) only apply to a chronic disease listed in § 3.309(a)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). For Veterans who have achieved "veteran" status through a prior period of service and claim a disability incurred during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" prior to that period, and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). Where a claim is based on a period of ACDUTRA, the presumption of aggravation is not applicable, even if the claimant achieved "veteran" status during a prior period of service. Id. at 48. The record contains multiple treatment records showing the Veteran has a lumbar spine disability. For example, an October 2005 private record from Dr. P.V.-S. reflects a diagnosis of lumbar disc herniation with lumbar radiculopathy. Results from an associated October 2005 MRI reflect findings of advanced lumbar spondylosis with a large L4-L5 extruded disc herniation with significant stenosis. November 2005 and September 2006 records from Methodist Ambulatory Surgery Center reflect that the Veteran underwent steroid injections to the lumbar spine. The post-operative diagnoses were degenerative lumbar spine with lumbar radiculopathy and a herniated nucleus pulposus and lumbar spondylosis. Therefore, the first element of the claim of service connection has been met. The Veteran contends that he injured his lumbar spine during an August 2005 period of ACDUTRA. Specifically, he has reported that on the day he arrived at Fort Hood for annual training in August 2005, he was lifting heavy luggage and twisted his back when dragging it out of a car and carrying it up to his second floor motel room. He has indicated that he had trouble getting out of bed the next day and sought treatment at the Metroplex Health System. His back continued to be painful the next day, so he then sought treatment with a private chiropractor, T.R. An August 2005 DA Form 2173, Statement of Medical Examination and Duty Status, reflects that upon arrival for annual training at Fort Hood, the Veteran was lifting heavy luggage and carrying it to his room on the second floor. This form was completed by T.R., DC of Roach Family Chiropractic and notes that the Veteran had degenerative joint disease aggravated by his reserve duty. The form specifically concludes that the injury was incurred in the line of duty. Based on this evidence the Board finds that an in-service event is established and that the second element of the claim of service connection for a low back disability has been met. Prior to his August 2005 period of ACDUTRA, the Veteran did not undergo an entrance examination. Thus, the presumption of soundness does not apply. As noted above, an October 2005 MRI revealed lumbar spondylosis with a large L4-L5 extended disc herniation with significant stenosis. On December 2012 VA examination, the examiner explained that these MRI results reflected advanced degenerative changes and spinal stenosis that would have pre-existed the August 2005 injury. A February 2016 opinion from Dr. P.V.-S. also acknowledges that October 2005 MRI results reflect degenerative changes. Therefore, the evidence supports that the Veteran had a lumbar spine disability that pre-existed his August 2005 period of ACDUTRA. Thus, the question remaining is whether the Veteran's lumbar spine disability was permanently aggravated beyond the normal course and scope of the disability by his injury during ACDUTRA. A January 2015 opinion from Dr. P.V.-S. opines that the Veteran's lumbar spine disability was aggravated by a herniated nucleus pulposus that was related to an injury incurred at Fort Hood in August 2005. In a February 2016 addendum opinion, Dr. P.V.-S. noted that the Veteran had no prior back problems until 2005. As noted above, he acknowledged that an October 2005 MRI noted degenerative changes, but he explained that what led to surgery after the 2005 accident was the herniated disc. He explained that the herniated disc was an acute change following a fall in August 2005 and that subsequent to the fall, the Veteran developed severe radiculopathy that led to surgery. The Board places significant weight of probative value on the January 2015 opinion from Dr. P.V.-S. coupled with the rationale provided in his February 2016 addendum opinion. These opinions describe the nature of the Veteran's lumbar spine disability in sufficient detail and reflect an understanding of the nature of the Veteran's in-service injury. They also explain the reasoning for the conclusions reached, thus, allowing the Board to make a fully informed evaluation of the underlying medical issue. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Other opinions of record include a March 2009 VA examination opinion and an opinion provided on December 2012 VA examination that weigh against the Veteran's claim of service connection. Although the December 2012 examiner provided an explanation regarding the nature of the disabilities of degenerative disc disease and spinal stenosis, he did not explain the nature of a herniated nucleus pulposus. The opinion does not address the pertinent question of whether the herniated nucleus pulposus finding shown in October 2005 represented a permanent aggravation of the Veteran's pre-existing lumbar spine disability. Therefore, the Board places little weight of probative value on this opinion. On the other hand, the March 2009 VA examiner addresses the effect of the herniated nucleus pulposus. Specifically, the examiner opined that the Veteran experienced an acute injury in August 2005 but that the back problem was not aggravated by the lifting of luggage. He based this conclusion on his review of the October 2005 MRI and the Veteran's history. He opined that the Veteran was a mail carrier and carried mail all the time and that evidence of record indicated that degenerative joint disease was aggravated prior to the Veteran's August 2005 period of ACDUTRA. The examiner concluded that the Veteran's lumbar spondylosis and herniated nucleus pulposus was not a result of or caused by or aggravated by the August 2005 ACDUTRA injury. The Board places great weight of probative value on this opinion as it reflects knowledge of the Veteran's history of disability and the objective findings shown in the case. In weighing the evidence of Dr. P.V.-S.'s opinions and the March 2009 VA examiner's opinion, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's August 2005 injury during ACDUTRA aggravated his preexisting lumbar spine disability. Affording the Veteran the benefit of the doubt, as it must do in this situation, service connection for a lumbar spine disability is granted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Propriety of the Reduction of Disability Compensation Payments 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 38 C.F.R. § 3.803 relating to naval pension and 38 C.F.R. § 3.750(c) relating to waiver of retirement pay. Statutory and regulatory law prohibits the receipt of VA disability compensation benefits for any period for which the person receives active service pay. This includes active duty pay, drill, and active duty for training payments, and inactive duty for training payments made to Reservists and members of the National Guard. 38 U.S.C.A. § 5304(c); 38 C.F.R. § 3.654, 3.700. Reservists may waive their pension, compensation, or retirement pay for periods of field training, instruction, other duty, or drills. A waiver may include prospective periods and contain a right of recoupment for the days for which the reservist did not receive payment for duty by reason of failure to report for duty. 38 C.F.R. § 3.700(a)(1)(iii). Historically, at the completion of his second period of service in September 1992, the Veteran accepted an offer made under the Voluntary Early Transition Program and contracted to receive a VSI annuity payment of $10,968.49. The Voluntary Early Transition Program was intended to allow the Department of Defense to reduce the number of forces in a strategic way following the end of hostilities after the first Persian Gulf War. The amount of the annual annuity payment was calculated based upon a formula which took into account a member's years of service and was to be paid for the period equal to twice the number of years of service of the member. 10 U.S.C.A. § 1175. The law provides that a member of the military who is receiving VSI payments shall not be deprived of the incentive because of entitlement to VA disability compensation. However, an amount equal to the amount of any such disability compensation benefits shall be deducted from VSI payments. No deduction may be made from VSI payments for any disability compensation received because of an earlier period of active duty if the VSI is received because of discharge or release from a later period of active duty. 10 U.S.C.A. § 1175. An August 1992 Separation Processing Document reflects that the Veteran was approved for a VSI payment with eleven years, seven months, and twenty-one days of active federal service. This document also provides that, "Soldiers who receive VSI/SSB [special separation benefits] based on service in the Armed Forces and subsequently qualify under 10 or 14 USC for retired or retainer pay shall have deducted an amount equal to the total amount of VSI/SSB not previously recouped. This amount will be recouped from each payment [of retired or retainer pay] until the total amount deducted is equal to the total amount of VSI/SSB received." In December 2011, VA notified the Veteran that it was proposing to reduce his disability compensation payments due to his receipt of 97 days of drill pay in 2009. It provided him with 60 days to submit evidence, including VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, to verify the number of drill days he had during 2009 or explain why his compensation payments should not be reduced. In January 2012, the Veteran responded by indicating that the number of training days of 97 shown on VA Form 21-8951 was correct, but indicated that he was in receipt of Voluntary Separation Incentive (VSI) program payments. He explained that the VSI payment he received in 2009 was reduced by the amount of his VA disability compensation benefits for that period. As support for his statement, he submitted a Defense Finance and Accounting Service (DFAS) statement from October 1, 2008 to September 30, 2009 which reflected that $7,728.00 of VA disability compensation benefits were deducted from his gross annual VSI payment of $10,968.14. Therefore, he asserted that any duplicate amount of payment included in his VA disability compensation payments as a result of drill pay had already been taken from him by the Department of Defense in conjunction with the reduction of his VSI payments. He contended that any reduction done by VA would essentially result in the money being taken from him twice, or that more than 100 percent of his VA disability compensation would end up being withheld from him. In June 2013, VA notified the Veteran that it had decided to reduce his disability compensation payments because of the drill pay that he received for 2009. At the February 2016 hearing, the Veteran testified that his disability payments were already taken out of his VSI payment in 2009 and that he should not have to pay back the drill pay for a second time, since it was already excluded from his VSI payment. He also indicated that VA had not done this in prior years, except for in 2003, when he went to talk to his RO and they ended up not taking the drill pay out for that year. Board Hearing Tr. at 4-5. Based on a review of the evidence, the Board concludes that the offset of disability compensation benefits for 97 days due to receipt of military drill pay for fiscal year 2009 was proper. Here, VA Form 21-8951 submitted by the Veteran in January 2012 confirms that he had 97 days of drill pay in fiscal year 2009. The Veteran has not disputed that he received such drill pay. The Board acknowledges the Veteran's contention that VA should not have withheld drill pay he received in 2009 because his disability compensation had already been withheld from his VSI payments during fiscal year 2009. However, the law that governs payment of VA disability compensation requires VA to stop payment of such compensation for any period when a Veteran goes on active duty, including periods of active duty for training. It does not provide an exception based on disability compensation payments being taken out of VSI payments. VA is not governed by 10 U.S.C.A., which is the statutory chapter that governs VSI payments. Instead, DFAS is the agency responsible for administering VSI payments for the Department of Defense (DOD). Thus, if DFAS withheld more disability compensation than the Veteran was actually due during fiscal year 2009, the Veteran's remedy is with DFAS to make the VSI payment adjustment for that period. Also, the Veteran argued that VA had not taken this action previously other than on one occasion in 2003, which he had rectified. However, the record indicates that VA took this action on several other occasions. For example, an August 2006 letter informed the Veteran that VA was withholding 71 days of VA compensation from him because he had received 71 days of drill pay in fiscal year 2005. Additionally, a March 2008 letter notified the Veteran that VA was withholding 65 days of his VA disability compensation because he had received 65 days of drill pay in 2006. Moreover, a January 1998 letter, which responded to an August 1997 letter in which the Veteran raised concerns about VA's withholding of compensation for a period of active duty, informs the Veteran that the law required VA to stop compensation for any period a Veteran goes on active duty. The letter also let him know that if DOD withheld too much money from his VSI payments, then it was the DOD that would have to adjust his VSI payments. Therefore, the record confirms that VA has taken action in the past to adjust his compensation based on his receipt of drill pay; thus, the Board places little weight on the Veteran's argument to the contrary. The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). The Board is sympathetic to the Veteran's claim, but the facts in this case are not in dispute, and application of the law to the facts is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the appeal is denied. ORDER Service connection for a lumbar spine disability is granted. The offset of disability compensation benefits for 97 days due to receipt of military drill pay for fiscal year 2009 was proper. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs