Citation Nr: 18141003 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 13-08 941 DATE: October 9, 2018 REMANDED The issue of whether the Agency of Original Jurisdiction (AOJ) erred in calculating the retroactive payments due to the Veteran, to include whether excess amounts were withheld from disability benefits due to the Veteran’s receipt of $70,000.00 in settlement of a tort claim and whether the one-time payment of $5,886.00 due to retroactive payment for concurrent retirement pay, was correctly calculated, is remanded. REASONS FOR REMAND The Veteran had active service from September 1950 to October 1970. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing held in January 2018 via videoconference. The claims file contains a transcript of the hearing. The issue on appeal has been recharacterized to clarify the Veteran’s claim. Specifically, his appeal involves a primary claim that the $5,886.00 retroactive payment that he was granted in May 2011 was insufficient because he should also have received additional retroactive payments because the AOJ incorrectly amended his outstanding debt to $90,000 from the previously determined $70,000 resulting in excess withholdings from his disability benefits. In addition, because he has appealed, his claim also includes the issue of whether the calculation of the amounts he was due for retroactive payment for concurrent retirement pay was correctly calculated. The RO adjudicated this matter as a claim of whether the AOJ erred in granting a disbursement of only $5,886.00 as a retroactive payment for concurrent retirement pay. However, in submissions supporting his appeal and at his January 2018 Board hearing, the Veteran made clear that he was challenging the AOJ’s withholding of disability benefits to be applied as an offset of a 1999 settlement related to a judgment under 38 U.S.C. § 1151 in favor of the Veteran. He has argued that VA withheld more than the judgment amount. The AOJ has most recently indicated to the Veteran that the judgment amount being used to calculate total recoupment was $90,000. This amount is not correct. While the total amount of the judgment was $90,000, that amount was to be divided among the Veteran and other plaintiffs. See February 1999 Stipulation for Compromise Settlement (providing that the Veteran would receive $70,000 and four other beneficiaries would receive $5,000 each for a total settlement of $90,000). The AOJ had previously determined that the correct amount of the settlement for purposes of the offset was $70,000, the amount paid to the Veteran. This factual issue was subsequently adjudicated by the Board which specifically found: “In 1999, the veteran received $70,000 in settlement under the [Federal Tort Claims Act] for disability to which entitlement to compensation benefits under 38 U.S.C. § 1151 was established in 1997.” See May 2003 Board Decision. In numerous subsequent communications to the Veteran, he was informed that a portion of his disability benefits were being used to offset the 1999 settlement in the amount of $70,000. The most recent notification indicating a settlement amount of $90,000 is contrary to the AOJ’s prior determination, the Board’s prior factual finding, and notices provided to the Veteran after that Board decision. The correct settlement amount to be used for determining the amount to be offset using disability benefits is $70,000. The Veteran’s outstanding debt, or overpayment, must be recalculated using $70,000 as the original settlement amount. Because of the apparent error increasing the amount to $90,000, the Veteran may be owed a return of some of the disability benefits withheld from him to offset the settlement. However, the record does not contain sufficient evidence for the Board to make a calculation of the amount of money, if any, that is due the Veteran because of this apparent error. Moreover, the AOJ did not make these calculations in the context of this appeal or permit the Veteran adequate opportunity to challenge VA’s calculations of the amounts to be withheld from his disability benefits. He is entitled to initial review of this aspect of his claim by the AOJ to ensure he receives the full benefits available in the appeal process. This matter must be remanded for an audit of the Veteran’s file and readjudication of his claim that he is entitled to return of not only the $5,886.00, but also additional money withheld in error to offset a $90,000 settlement although the actual settlement was for $70,000. There are copies of audits in the file, including one done in 2011, but they are confusing, at best. There is no explanation for how the RO calculated the amount due of $5,886.00 as a retroactive payment for concurrent retirement pay. The documents do not CLEARLY delineate what the Veteran was entitled to receive, versus what he actually was paid, so that the questions in this appeal can be answered. The matter is REMANDED for the following action: 1. Conduct an audit of the Veteran’s account and determine the amount of retirement benefits that should have been paid to the Veteran concurrently with his disability benefits due to a change in the law permitting the award of both. Include a report on the audit in the claims file. 2. Conduct an audit of the Veteran’s account and determine (a) the total amount of disability benefits withheld from the Veteran for the purpose of offsetting his 1999 settlement payment of $70,000 and (b) the total amount owed to the Veteran as overpayment or owed by the Veteran to VA to satisfy any remaining balance of the $70,000 offset. Include a report on the audit in the claims file. 3. Readjudicate the Veteran’s claim to include both (a) whether the $5,886.00 payment included all of the retirement pay due to the Veteran concurrently with his disability benefits (but which had not been paid) and (b) whether the Veteran is owed a retroactive payment for disability payments withheld in excess of $70,000 for the purpose of offsetting the 1999 tort settlement. If the full benefits sought on appeal are not granted, the Veteran and his representatives should be provided a Supplemental Statement of the Case. After an opportunity for response, the matter should be returned to the Board. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kerry Hubers, Counsel