Citation Nr: 1806097	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  16-16 391	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to concurrent retirement and Department of Veterans Affairs (VA) disability payment (CRDP) in an amount greater than $20,547.00, including entitlement to an effective date earlier than August 25, 2013 for the grant of service connection for bilateral hearing loss and tinnitus.


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran had active Naval service from March 1953 to March 1956. Afterwards he was a member of the Naval Reserve and subsequently became retirement eligible in that status.

This appeal to the Board of Veterans' Appeals (Board) arose from a November 2014 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss rated 90-percent disabling, and tinnitus rated 10-percent disabling, both effective August 25, 2013. On execution of that decision, the RO later determined that the Veteran was entitled to retroactive Concurrent Retirement and Disability Pay (CRDP) in the amount of $20,547.00 for the period September 1, 2013 to December 31, 2014. The Veteran perfected an appeal of that determination.

The RO characterized the issue of the case solely as entitlement to an earlier effective date for grant of service connection for bilateral hearing loss and tinnitus. In light of the evidence of record and Veteran's assertions, however, the Board has re-phrased the issue as shown on the title page. In so doing, it is noted that the statement of the case does make reference to the issue of concurrent pay and thus it is appropriately in appellate status.


FINDINGS OF FACT

1. The Veteran was transferred to the Naval Reserve Retired List With Pay, effective November 18, 1990.

2. VA received the Veteran's claim for VA compensation for bilateral hearing loss and tinnitus on August 25, 2014. The claim was adjudicated under the Fully Developed Claim process (FDC).

3. A November 2014 rating decision granted entitlement to service connection for bilateral hearing loss, rated 90-percent disabling, and tinnitus, rated 10-percent disabling, both effective August 25, 2013.

4. The Department of the Navy determined that the Veteran is eligible for CRDP.

5. Per information received from the Defense Finance and Accounting Service (DFAS), the RO determined that the Veteran was entitled to retroactive CRDP for the period September 1, 2013 to December 31, 2014.


CONCLUSION OF LAW

The criteria for retroactive CRDP in an amount greater than $20, 547.00 have not been met. 10 U.S.C. § 1414(a) (West 2012); 38 U.S.C. § 5110(b)(1), 5304, 5305 (West 2012); 38 C.F.R. §§ 3.155, 3.160, 3.161, 3.400, 3.750, 20.1500 et seq (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veteran's application for VA compensation was processed under the FDC Process. See 38 C.F.R. §§ 3.161, 20.1500 et al. Further, the Form specifically informed the Veteran that submission of the Form constituted an election of VA Disability Pay in lieu of Military Retirement Pay (MRP). Moreover, since this appeal will be decided solely on the applicable law, the VCAA, see 38 C.F.R. § 3.159, is not applicable. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Legal Requirements

In general, there is a prohibition on the concurrent payment of MRP and VA disability compensation pay without a waiver of a portion of the retired pay. See 38 U.S.C. § 5304; see also 38 U.S.C. § 5305.  Because of this prohibition, the RO withheld portions of the Veteran's disability payments for certain periods; it was done to avoid an overpayment due to a duplication of benefits. 

Legislation, however, has been enacted to allow certain veterans to receive some measure of concurrent payments for both their MRP and their VA disability compensation. The National Defense Authorization Act of 2004 established CRDP, effective January 1, 2004. See 10 U.S.C. § 1414(a). CRDP is a program that is available to military retirees who served a minimum of 20 years creditable service, including service in the National Guard and Reserves. The Service Department, not VA, determines eligibility. CRDP restores some or all of the military retired pay that was deducted due to receipt of VA service-connected disability compensation. Retirees must be rated 50 percent or more disabled by VA and, unlike CRSC, the disabilities do not have to be combat-related. Retirees are not required to apply for this benefit; enrollment is automatic. See Id.; M21-1MR, Part III, Subpart v, 5.A.6.

Generally, the effective date of a VA award based on an original claim, or a claim reopened after final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(a).

A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant's behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a).

Thus, the essential elements for any claim, whether formal or informal, are 
(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).  
VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits. See 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 
34-35 (1998).

Discussion

The Board notes that the Statement of the Case (SOC) does not cite or otherwise reference 38 C.F.R. § 3.750 or the enabling statute. Nonetheless, the RO's Letter of Notification to the Veteran clearly informed him of the basis for CRDP and how it was calculated. The Board also notes that the Veteran has not disputed how his retroactive CRDP was calculated or the monthly amount on which it was based. Instead, the Veteran disputes the period of time for which he was determined to be eligible for retroactive CRDP. The SOC also does not cite 38 U.S.C. § 5110(b)(1) but, as discussed later, he received the benefit of that section. Hence, the Board will not remand for issuance of another SOC or a Supplemental SOC (SSOC). As such, the Board will proceed to the merits of the appeal.

There is no dispute as to the basic facts in this case. Military personnel records reflect that the Veteran was transferred to the Naval Reserve Retired List With Pay in November 1990. (10/30/2014 Military Personnel Records) Per the claims file, the VA received the Veteran's written intent to file a claim on August 25, 2014. (08/25/2014 Correspondence) His formal application under the FDC Process was also received on that date. (08/25/2014 VA Form 23-526EZ) This dispute from the Veteran's perspective relates solely to how the RO calculated his CRDP. A VA letter informed the Veteran that he was not allowed to receive full military retired pay and full VA compensation at the same time; and, in order to prevent a double payment, VA would withhold all or part of his compensation until January 1, 2015; and, that VA would work with the Veteran's service department to insure that the Veteran received the full combined payment. (02/13/2015 Notification, p. 2)

A March 2015 VA letter informed that Veteran that, "[b]ased on the information in your military retired pay files and VA records, you are entitled to a retroactive CRDP compensation payment of $20,547.00. This payment covers the period September 1, 2013 through December 31, 2014." 

The Veteran's written submissions reflect that he really was not concerned about the significance of the date his claim was received and how it impacted his benefits. In his Notice of Disagreement he asked, "[w]hat is so special about September 1, 2013?" (05/04/2014 NOD, p. 2) The crux of his argument is that he has labored under a hearing loss disability since 1985, and he asserts that the CRDP should have been calculated from that date. Id. He submitted documentation to show the date of onset of his bilateral hearing loss.

Given the above, it appears that the Veteran believes he should be compensated from the date he incurred his hearing loss disability; however, that is not the law. The applicable law was set forth above. Generally, the effective date of an award is the date VA received a claim or when entitlement arose, whichever is later. 38 C.F.R. § 3.400. Stated simply, it is the date that VA receives a claim, or an intent to file a claim, that generally determines the effective date on which payment for a granted claim begins. As already noted, VA received the Veteran's claim on August 25, 2014. (08/25/2014 Correspondence) That normally would have been the effective date for payment of VA compensation. In cases such as the Veteran's, however, Congress legislated an exception. Where a claim is processed under the FDC process, an effective date of no more than one-year earlier than the date received may be assigned. 38 U.S.C. § 5110(b)(1). The rating decision reflects that the Veteran's effective date of August 25, 2013 was assigned on that basis. (11/21/2014 Rating Decision-Narrative) Payments properly started on the first day of the following month, September 2013. Prior to August 25, 2013, the Veteran had no entitlement to VA disability pay, for VA had not received a claim from him. Hence, prior to that date there was no issue of receipt of both MRP and VA disability pay. So that is why September 1, 2013 is "special."

The Board does not question the fact that the Veteran has labored under his hearing loss disability since 1985. Nonetheless, VA did not receive a claim from him until August 25, 2014. Thus, the timeframe of his disability has no bearing on the issue currently before the Board.

As noted, the Veteran has not disputed the monthly amount of his retroactive CRDP. He only disputed the period for which the retroactive pay applied. In as much as the RO correctly calculated the amount of $20,547.00 based on an effective date of August 25, 2013 and the information provided by DFAS, there is no error. 10 U.S.C. § 1414(a); 38 U.S.C. § 5110(b)(1); 38 C.F.R. §§ 3.400, 3.750.
In light of all of the above, the Board finds that the preponderance of the evidence is against the claim.

In reaching this decision the Board considered the doctrine of reasonable doubt.  As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

Entitlement to CRDP in an amount greater than $20,547.00, to include entitlement to an effective date earlier than August 25, 2013, is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs