Citation Nr: 18147190 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-22 412 DATE: November 2, 2018 REMANDED Whether the retroactive payment made in July 2013 of VA disability compensation in the amount of $86,629.70 was calculated properly is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that notified the Veteran of a $86.629.70 retroactive payment of VA disability compensation as result of concurrent retirement and disability pay (CRDP) following the assignment of an earlier effective date for a total disability rating based on individual unemployability (TDIU) by a July 2011 rating decision. The Defense Finance and Accounting Service (DFAS) is responsible for calculating CRDP; therefore, the Board only has jurisdiction to review whether VA paid the correct amount of retroactive VA disability compensation and related matters based upon the CRDP calculations provided by DFAS. The Veteran has raised three primary contentions regarding the retroactive amount paid by VA in July 2013. First, the Veteran has asserted VA used the 70 percent rate to calculate his retroactive payment rather than the 100 percent rate. The VETNETS Audit Error Worksheet (AEW) generated on October 20, 2011 shows the 100 percent rate dating back to June 1, 2004 for the Veteran’s retroactive VA monthly disability compensation award, as indicated in the column labeled “VA Award.” Thus, the Board finds further development regarding this contention is not warranted. Second, the Veteran has asserted the amounts that were deposited in his personal account from the United States Treasury each month as a result of VA disability compensation dating back to June 1, 2004 do not match the monthly total in the column labeled “VA Paid” on the October 2011 AEW. However, the monthly deposits dating back to June 1, 2004 do not match the total amount VA paid for each month during the requisite period because the Veteran received several retroactive awards paid in lump sums that account for the total amount paid each month as indicated on the October 2011 AEW. In this regard, the Veteran was initially compensated at the 70 percent rate dating back to June 1, 2004. An April 2005 notice letter informed him that his full VA award was being withheld until April 1, 2005, after which time a partial amount would be withheld due to his receipt of retirement pay; however, the Veteran later received from VA retroactive payments in the amount of $6,239 in June 2008 and $6,700 in March 2009, due to the implementation of CRDP. A May 2011 rating decision granted the Veteran entitlement to TDIU, effective February 27, 2007, which resulted in an $8,900.80 retroactive award. Thus, the monthly deposits from the United States Treasury into the Veteran’s personal account would not match the column labeled “VA Paid” on the AEWs until after the May 2011 rating decision. Nevertheless, the amounts previously deposited on a monthly basis when combined with the various retroactive lump sum payments equate to the amounts shown on the October 2011 AEW as the amount VA paid each month, and additional investigation of this contention is not warranted. Third, the Veteran asserts he has not received the appropriate dependency allowance in his retroactive award. The Board finds there are significant concerns with the Veteran’s dependency allowance during the retroactive period. The October 2011 AEW indicates the Veteran’s total monthly award from June 1, 2004 through November 30, 2004 was $2,523.00, which equates to the 100 percent rate for a married veteran with one child plus an additional child when using VA’s historical rate tables. Similarly, the October 2011 AEW indicates the Veteran’s total monthly award from December 1, 2004 to July 30, 2005 was $2,589.00, which also equates to the 100 percent rate for a married veteran with one child plus an additional child when using VA’s historical rates tables. However, the claims file establishes the Veteran should have been compensated at the 100 percent rate for a married veteran with one child plus two additional children because his stepson, L.A.B., was on his monthly award until his divorce from L.A.B.’s mother in July 2005. The Board acknowledges that an August 2016 notice letter informed the Veteran that dependency had never been established for L.A.B., but this is is not supported by the record. Importantly, a March 31, 2005 compensation award clearly lists L.A.B. on the Veteran’s award. The third dependent child, the Veteran’s biological son, E.K.S., was subsequently added through a May 24, 2005 compensation award after the Veteran provided E.K.S.’s social security number following the receipt of an April 2005 notice letter regarding his initial award. The Veteran has also asserted he should receive dependency allowance for his two biological children for most of the retroactive period because they were both in school. The Veteran’s biological children, T.A.S. and E.K.S., remained on the Veteran’s award until their respective 18th birthdays in January 2007 and September 2008, respectively. The October 2011 AEW reflects the Veteran’s total monthly award at the 100 percent rate for a single veteran with one child following T.A.S.’s birthday in January 2007 and the 100 percent rate for a single veteran with no children after E.K.S’s birthday in September 2008; however, the record shows the Veteran filed an informal dependency claim/notice of disagreement on March 17, 2009 asserting he was entitled to dependency allowance for both T.A.S. and E.K.S. based on their school enrollment after he received a March 9, 2009 notice letter informing him that he would be compensated as a single veteran with no children following a significant delay in processing his November 2005 request to remove his ex-wife and stepson from his award. It does not appear the Agency of Original Jurisdiction (AOJ) acknowledged the Veteran’s March 17, 2009 correspondence regarding his dependency status. Whether the correspondence is interpreted as an informal claim or a notice of disagreement, the Board finds the AOJ should have adjudicated whether the Veteran was entitled to dependency allowance for T.A.S. and E.K.S., to include the development of school attendance information, based on the March 17, 2009 correspondence, especially in light of the confusion resulting from the delay in processing the Veteran’s November 2005 request to remove his ex-wife and stepson from his award. The Board finds it necessary to direct the AOJ to address this issue in the first instance prior to making a final decision on the propriety of the Veteran’s retroactive award. Finally, the October 2011 AEW indicates VA owed the Veteran $95,095.39 in retroactive compensation. Yet, in July 2013, the AOJ only awarded the Veteran $86,629.70, indicating records showed he had already been paid $8,466.00. The Board is unable to find any evidence of a payment to the Veteran in the amount of $8,466.00. The claims file includes a copy of the October 2011 AEW associated with the claims file on July 19, 2013 with handwritten notes from the AOJ that suggest a notification letter dated August 1, 2011 in Virtual VA shows the prior payment; however, the August 1, 2011 notification letter in Virtual VA does not include a payment amount and appears to relate to a retroactive award of $19,981.03 generated on July 29, 2011. It is unclear whether this amount was ever paid to the Veteran because the VETSNET award generation notice indicates the award was based on the change of the effective date of TDIU to June 1, 2004, which was also the basis for the subsequent $86,629.70 award generated on July 9, 2013. The Board notes a separate retroactive award in the amount of $8,900.80 was generated on June 8, 2011, based on an effective date of TDIU of March 1, 2007. It appears the AOJ simply subtracted the amount of the award generated by VETSNET on July 9, 2013 ($86,629.70) from the total VA disability compensation due on the October 2011 AEW ($95.095.39) and informed the Veteran the difference ($8,465.69 rounded up to the nearest dollar ($8,466.00) had already been paid by VA without a true accounting to support the discrepancy between the two amounts. The Board finds an audit of the Veteran’s compensation payment history is necessary to ensure he is paid the correct and full amount to which he is entitled. The matter is REMANDED for the following actions: 1. Correct the appropriate systems to show the Veteran was entitled to dependency allowance for his stepson, L.A.B., from June 1, 2004 through July 30, 2005, after which L.A.B. was removed from the Veteran’s award due to the Veteran’s divorce from his mother (i.e., to show the Veteran was entitled to payment at the 100 percent rate for a married veteran with a child plus two additional children from June 1, 2004 to July 30, 2005). 2. Develop and adjudicate the issue of entitlement to dependency allowance for the Veteran’s biological sons, T.A.S. and E.K.S., subsequent to their 18th birthdays, to include the development of school attendance information, in accordance with the Veteran’s March 17, 2009 correspondence regarding his dependency status. 3. After resolving the dependency issues noted above, conduct an audit of the Veteran’s payment history to ensure he receives the full amount to which he is entitled. There must be a full accounting for any amount shown to be owed but not paid to the Veteran on a past AEW or a newly generated AEW, to include a formal finding outlining the specific payment date for any reductions. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel