Citation Nr: 1629959 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 15-00 330A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an effective date prior to June 3, 2008, for the payment of Combat-Related Special Compensation (CRSC). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had verified active service from December 1940 to June 1945, and from August 1946 to August 1962. He died in October 2008. The appellant is his surviving spouse. In June 2014, the appellant was afforded a hearing before a Decision Review Officer at the above-cited RO. A copy of the hearing transcript is of record. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In July 2009, the RO stated that the Veteran had a claim pending at his time of death which increased his combined service-connected compensation from 20 percent to 40 percent, effective June 3, 2008; however, the RO noted that the Veteran was also in receipt of military retired pay, and that because his retired pay amount was greater than the increase in his VA compensation, no additional benefits were due, and that her claim for accrued benefits was therefore denied. 2. In August 2009, the Department of the Air Force (USAF) granted the Veteran's claim for CRSC, and indicated that the basis of the grant was the Veteran's service-connected right ankle disability, evaluated as 0 percent disabling as of January 2008, and 20 percent disabling as of July 2008; total combat-related disability was 20 percent; combined rating effective dates were 0 percent as of January 1, 2008 and 20 percent as of July 1, 2008; the USAF concluded that the Veteran's postoperative stomach injury-duodenal ulcer was not approved for consideration as a condition under the CRSC, as it was non-combat related. 3. In November 2010, VA notified the appellant that the Veteran was determined to have been entitled to CRSC benefits from July 1, 2008. CONCLUSION OF LAW An effective date prior to June 3, 2008 for the payment of Combat-Related Special Compensation is denied. 38 U.S.C.A. § 1413a (West 2014 & Supp. 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that she is entitled to an effective date prior to June 3, 2008, for the payment of CRSC. During her hearing, held in August 2015, it was essentially argued that the Veteran's service-connected right ankle disability warranted a compensable disability rating prior to the effective date of June 3, 2008. It was argued that the correct effective date should be January 1, 2004, because the CRSC program provides that moneys withheld by VA to offset retired pay on January 1, 2004, or later may be returned to the Veteran, and his right ankle disability warranted a compensable rating as of that date. In general, there is a prohibition on the concurrent payment of military retired pay and VA disability compensation pay without a waiver of a portion of the retired pay. See 38 U.S.C.A. § 5304 (West 2014 & Supp. 2015); see also 38 U.S.C.A. § 5305 (West 2014 & Supp. 2015). However, legislation 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). The CRSC is the only program that is at issue in this case. The CRSC program was established by the National Defense Authorization Act (NDAA) for Fiscal Year 2003, Pub. L. 107- 314, § 636, in December 2002; it became effective June 1, 2003. The purpose of the legislation was to allow receipt of partial or full military retired pay and VA disability compensation to eligible military retirees with combat-related disabilities. In effect, the CRSC program provides that moneys withheld by VA to offset retired pay on January 1, 2004, or later may be returned to the Veteran. Under a prior version of the law, CRSC was payable when a Veteran had a combined 60 percent service-connected, combat-related disability, and was evaluated as individually unemployable due to the service-connected disability. See VA Adjudication Procedure Manual, (VBA Manual M21-1), III.v.5.A.7. An amendment to the statute expanded basic eligibility, effective January 1, 2004, for the veterans who have completed 20 years of service and have a qualifying compensable (i.e, a disability rated as at least 10 percent disabling) "combat-related" disability (the criteria for CRSC do not require a Veteran to have actually engaged in combat). See National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 641, 122 Stat 3 (2008). The change in law was codified at 10 U.S.C. § 1413a. The military department makes the final determination regarding qualifying disabilities. This is not a VA program. Id. The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, precedent opinions of the General Counsel of the VA and precedential decisions to courts of superior jurisdiction. 38 U.S.C.A. § 7104(c) (West 2015 & Supp. 2015); 38 C.F.R. § 20.101(a) (2015). VA is not the agency responsible for making the determination of CRSC eligibility in the first instance. A veteran must apply with his own service department through the Defense Finance and Accounting Service (DFAS). See VBA Manual M21-1, III.v.5.A.7; see also 10 U.S.C.A. § 1413a. Once a determination as to eligibility has been made by DFAS, and notice provided to VA, a veteran's compensation can be adjusted accordingly. Notwithstanding the effective date assigned for either an original grant of benefits or an increased rating, under the law, the commencement of payment of VA monetary benefits is delayed until the first day of the calendar month following the month in which the effective date of the award is assigned. See 38 U.S.C.A. § 5111(a) (West 2014 & Supp. 2015); 38 C.F.R. § 3.31 (2015). The statutory and regulatory provisions explicitly specify that except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For claims for increased disability compensation, an increase in disability compensation may be granted from the earliest date on which it is factually ascertainable that an increase in disability occurred if the claim for an increase is received within 1 year from that date. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet App 125, 126 (1997). The relevant facts and administrative history are as follows: The Veteran had verified active service from December 1940 to June 1945, and from August 1946 to August 1962. His military records show that he served in several campaigns during World War II, and that his military decorations include the Combat Infantryman Badge. His service treatment records note a history of a right ankle injury during combat in 1944, while serving with the 5th Infantry Division. In November 1979, the RO granted service connection for residuals of a right ankle injury, evaluated as noncompensable (0 percent disabling), and status post gastrectomy for duodenal ulcer, evaluated as 20 percent disabling. In each case, an effective date for service connection of August 31, 1979 was assigned. On June 3, 2008, the Veteran filed claims for increased ratings. In July 2008, the Veteran was afforded an examination of his right ankle. In a rating decision, dated October 17, 2008, the RO indicated that an increase in the Veteran's rating for his service-connected ulcer condition, evaluated as 20 percent disabling, was not warranted, but that an increase in his service-connected right ankle was warranted, i.e., from noncompensable to 20 percent, with an effective date of June 3, 2008. The Veteran died in October 2008. In accordance with VA procedures, the RO's October 2008 decision was therefore not promulgated. See October 2012 deferred rating decision. In April 2009, the appellant filed a claim for accrued benefits. In July 2009, the RO denied the appellant's claim. The RO stated that the Veteran had a claim pending at his time of death which increased his combined service connected compensation from 20 percent to 40 percent, effective June 3, 2008. However, the RO noted that the Veteran was also in receipt of military retired pay, and that because his retired pay amount was greater than the increase in his VA compensation, no additional benefits were due, and that her claim for accrued benefits was therefore denied. In August 2009, the Department of the Air Force (USAF) granted the claim for CRSC, and indicated that the basis of the grant was the Veteran's right ankle disability, which had been evaluated as 0 percent disabling as of January 2008, and 20 percent disabling as of July 2008. Total combat-related disability was 20 percent; combined rating effective dates were 0 percent as of January 1, 2008 and 20 percent as of July 1, 2008. The USAF concluded that the Veteran's postoperative stomach injury-duodenal ulcer was not approved for consideration as a condition under the CRSC, as it was non-combat related. In October 2009, the USAF stated that it was amending its August 2009 decision. The only change to its earlier decision was to note that the Veteran's right ankle disability had been evaluated as 0 percent disabling as of January 2004, and that the combined rating effective date of 0 percent was as of January 1, 2004. The USAF again indicated that the Veteran's postoperative stomach injury-duodenal ulcer was not approved for consideration as a condition under the CRSC, as it was non-combat related. In August 2010, the appellant requested an audit of the Veteran's VA compensation. In November 2010, VA notified the appellant that, in response to her request for an audit, the Veteran was determined to have been entitled to CRSC benefits from July 1, 2008, see 38 C.F.R. § 3.31, and that she was entitled to an estimated retroactive compensation payment for CRSC in the amount of $690 on behalf of the Veteran. In her notice of disagreement, received in November 2011, the appellant argued that she disagreed with the USAF's determination that the Veteran's ulcer condition was not combat related, and she asserted that the Veteran's CRSC payment should have included payment based upon his service-connected ulcer condition. As an initial matter, to the extent that it is argued that the Veteran's CRSC pay should have included consideration of his service-connected ulcer condition, the appellant has not shown that the Department of the Air Force has awarded CRSC pay for this condition. The evidence shows that his compensation for his service-connected right ankle disability, at 20 percent as of July 1, 2008, is the only disability that is subject to CRSC pay. Consequently, the basic rule that a veteran cannot receive both VA compensation and retirement pay is applicable to the 20 percent rating for the service-connected ulcer condition. The CRSC program is not a VA program; it is the military department that makes the final determination regarding qualifying disabilities. 10 U.S.C. § 1413a. Until such time as the appellant can show that the Department of the Air Force has determined that his service-connected ulcer condition is subject to CRSC pay, both VA compensation and retirement pay may not be paid. To the extent that the appellant contends that an earlier effective date is warranted for the Veteran's 20 percent rating for his service-connected right ankle disability, the Board can find no basis for the assignment of an earlier effective date for the 20 percent rating. Assuming that any change in VA's rating of the Veteran's service-connected right ankle disability would be reflected in a USAF CRSC decision, in November 1979, the RO granted service connection for this disability and evaluated it as noncompensable. The appellant does not have standing to pursue an issue of clear and unmistakable error in this rating decision. Only the claimant involved may request a revision of a prior decision on the basis of CUE; survivors are limited to seeking benefits under the accrued benefits provision. See Haines v. West, 154 F. 3d 1298 at 1301-02 (Fed. Cir. 1998). In any event, the Board see no basis to under the facts of this case that an earlier effective date could be granted. The only other rating decision as to the right ankle was dated in July 2009, at which time the RO indicated that an increase was warranted, i.e., from noncompensable to 20 percent, with an effective date of June 3, 2008 (at the time of the July 2009 rating decision, there was no service-connected disability which had been found to be a combat-related, qualifying disability for the CRSC program. 10 U.S.C. § 1413a). The August 2009 USAF decision determined that the Veteran's right ankle disability was combat-related, with a compensable (20 percent) rating as of July 1, 2008. The USAF decision appears to have been based on the July 2009 rating decision. The July 2009 rating decision is final, and may not be disturbed in the absence of a CUE claim, which has not been made. 38 U.S.C.A. § 7105(c). The Board will parenthetically note, however, that the underlying facts as to that decision show that the Veteran filed his increased rating claim on June 3, 2008. He was afforded an examination in July 2008, and the RO assigned an effective date for the 20 percent rating based on the date of receipt of his claim (i.e., June 3, 2008). There does not appear to be any basis for an earlier effective date, as there is no medical evidence of record pertaining to the right ankle prior to that time, thus, there is no medical evidence to show that the criteria for a 20 percent rating were met prior to the assigned effective date. See 38 C.F.R. § 3.400(o)(2); Harper; see also 38 U.S.C.A. § 1155 (West 2014 & Supp. 2015); 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5271, 5272 (2015). Based on the foregoing, the claim for an effective date prior to June 3, 2008, for the payment of Combat-Related Special Compensation must be denied. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014 & Supp. 2015) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Because the law is dispositive of the issue addressed herein, see Sabonis v. Brown, 6 Vet. App. 426 (1994), the duties to notify and assist are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). See also Manning v. Principi, 16 Vet. App. 534, 542 (2002) (VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on the fact); Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Further, VA has no duty to assist the appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid her in substantiating her claim. See 38 U.S.C.A. § 5103A ; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). ORDER An effective date prior to June 3, 2008, for the payment of Combat-Related Special Compensation is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs