Citation Nr: 1627629 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 15-12 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to additional retroactive compensation (payment) under the Concurrent Receipt of Retired and Disability Pay (CRDP) program for a dependent spouse from April 1, 2011 to June 1, 2014. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1969 to May 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This appeal was processed using both the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future review of this case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Historically, in an April 2013 rating decision, the Veteran was awarded service connection for residuals of a traumatic brain injury, rated at 100 percent, effective March 4, 2011. In an April 2013 notification letter, the Veteran was informed that he was being paid as a single veteran with no dependents and that payments were withheld to avoid double payment of military retired pay and VA compensation. In this regard, there is a general prohibition on the concurrent payment of military retirement pay and VA disability compensation pay without a waiver. See 38 U.S.C.A. § 5304 (West 2014); see also 38 U.S.C.A. § 5305 (West 2014). VA regulations also contain the prohibition. See 38 C.F.R. § 3.750(b)(3) (2015). This prohibition is the reason the RO withheld portions of the Veteran's disability payments for certain periods. This was done to avoid an overpayment. Legislation, however, has been enacted to allow certain veterans to receive some measure of concurrent payments for both their retired military pay and their VA disability compensations. The two applicable programs are known as Combat Related Special Compensation (CRSC) and Concurrent Retirement and Disability Payment (CRDP). In the April 2013 notification letter, the Veteran was informed that he may be eligible for full or partial concurrent receipt of VA compensation and military retired pay under the CRSC and/or CRDP programs. The Veteran was notified that the Retired Pay Center (RPC) had been notified of this award of VA compensation, and, if the RPC determines the withholdings from his VA compensation should be retroactively adjusted due to CRSC/CRDP eligibility, VA will be notified and will adjust his VA compensation accordingly. Subsequently, in a November 2013 notification letter, the RO informed the Veteran that, in working with the Defense Finance and Accounting Service (DFAS), the Veteran was entitled to a retroactive CRDP compensation payment, which covered the period from April 1, 2011 through April 30, 2013. In a December 2013 Notice of Disagreement, the Veteran contended that the payments were based on a single veteran without dependents even though he has been married for 45 years. The Veteran further indicated that the monthly payments were still being paid at the single veteran's rate. In a May 2014 notification letter, the Veteran was informed that he is now being paid as a Veteran with one dependent, effective April 1, 2011. Again, although the Veteran was notified that VA is withholding portions of the Veteran's disability payments for certain periods, the Veteran was informed that he may be eligible for full or partial concurrent receipt of VA compensation and military retired pay under the CRSC and/or CRDP programs. The Veteran was again notified that the RPC had been notified of this award of VA compensation. To date, the Veteran has consistently contended that he is entitled to compensation as a veteran with one dependent (spouse) and that, while he was awarded compensation as a veteran with one dependent in May 2014 (after the issuance of the November 2013 retroactive CRDP compensation payment), the withheld amount (noted in the May 2014 notification letter) should also be retroactively awarded through the CRDP program. In this regard, the Veteran is not required to apply for this benefit as enrollment in CRDP is automatic. See VBA M21-1R, Part III, Subpart v, 5.A.6; see also 10 U.S.C. § 1414 (West 2002); 38 C.F.R. § 3.750. However, VA is not the agency responsible for making the determination of CRDP eligibility in the first instance. Once a determination on eligibility has been made by DFAS, and notice provided to VA, the Veteran's compensation can be adjusted accordingly. But, here, the RO's communication with DFAS has only confirmed the Veteran's eligibility under CRDP for retroactive compensation payment as a veteran with no dependents. Again, VA generally, and the Board in particular, cannot address determinations of eligibility to CRDP in the first instance. Specifically, DFAS must address the Veteran's entitlement to a retroactive CRDP compensation payment as a veteran with one (spouse) dependent. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the case to the Defense Finance and Accounting Service (DFAS) for a determination as to whether the Veteran is entitled to additional retroactive compensation (payment) under the CRDP program for a dependent spouse from April 1, 2011 to June 1, 2014. DFAS is directed to the May 2014 RO determination indicating that the Veteran is a veteran with one dependent. 2. Upon a response from DFAS, undertake any adjudicative actions necessary. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, the appeal must be readjudicated. If the benefit sought is not granted, the Veteran and the representative should be furnished a Supplemental Statement of the Case, and should be afforded an opportunity to respond. The case should then be returned to the Board for further review, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 2014). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).