Citation Nr: 18147740 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 10-37 257 DATE: November 6, 2018 ORDER Whether the withholding of compensation payments for autoimmune thyroiditis with euthyroid goiter for the purpose of recouping severance pay was proper is denied. Entitlement to an effective date earlier than June 1, 1995, for termination of withholding of severance pay and reinstatement of 10 percent rate is denied. (The issue of entitlement to an initial higher rating for hemorrhoids (internal/external) is addressed in a separate Board decision.) FINDINGS OF FACT 1. The Veteran received severance pay for her service-connected autoimmune thyroiditis with euthyroid when she was removed from the Temporary Disability Retired List in May 1995; VA is required by law to withhold VA disability compensation benefits until special separation benefits paid at service separation are recouped. 2. Severance pay was not withheld prior to June 1, 1995; the Veteran received compensation at the 10 percent rate from November 1, 1993, until June 1, 1995. CONCLUSIONS OF LAW 1. The recoupment of disability severance pay by withholding the Veteran’s VA disability compensation, was proper. 10 U.S.C. §§ 1174, 1212; 38 U.S.C. § 5107; 38 C.F.R. § 3.700. 2. The criteria for entitlement to an effective date prior to June 1, 1995, for termination of withholding of severance and pay reinstatement of 10 percent disability rating have not been met. 10 U.S.C. §§ 1174, 1212; 38 U.S.C. § 5107; 38 C.F.R. § 3.700. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1985 to May 1993. The Board previously remanded this case in December 2013 to afford the Veteran a hearing before a Decision Review Officer (DRO) at the Regional Office and thereafter, Board video conference hearing. A DRO hearing was held in March 2015. A transcript of the hearing has been associated with the record. However, despite numerous attempts for three years, which are outlined in a May 2018 deferred rating action, to schedule the Veteran for a Board video conference, the Agency of Original Jurisdiction (AOJ) has not been able to schedule a hearing. Most recently, the Veteran refused to report for a Board hearing and gave no good cause for not scheduling a hearing in the future. Thus, the Board finds that the Veteran’s hearing request has been withdrawn and the AOJ has substantially complied with the Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Whether the withholding compensation payments for autoimmune thyroiditis with euthyroid goiter for the purpose of recouping severance pay was proper The Veteran contends that the withholding of compensation payments for the purpose of recouping severance pay was not proper. In this case, the Veteran does not dispute that she received disability severance pay at the time of her discharge or the amount of disability severance pay that she received. She essentially asserts that the severance pay and the compensation pay for the service-connected disability were not related to the same disability, and thus, recoupment of the severance pay was not proper. A service member who has received separation pay under 10 U.S.C. § 1174, or separation pay, severance pay or readjustment pay under any other provision of law, based on service in the armed forces, shall not be deprived, by reason of his or her receipt of such separation pay, severance pay, or readjustment pay, of any disability compensation to which he or she is entitled under the laws administered by VA; but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay, severance pay, and readjustment pay received. 10 U.S.C. § 1174(h)(2); see 38 U.S.C. § 1174a(g) (providing that the provisions of 10 U.S.C. § 1174(h) also apply to the payment of special separation benefits to members of the armed forces). There are very limited exceptions to such recoupment, such as a sole survivorship discharge or where disability severance pay was received for disability incurred in line of duty in a combat zone. See 10 U.S.C. §§ 1174(i), 1212(d). There is no argument or indication that these exceptions apply in this case. Likewise, VA’s implementing regulation provides, generally, that not more than one award of pension, compensation, or emergency officers’, regular or reserve retirement pay will be made concurrently to any person based on his or her own service, except as provided in 38 C.F.R. § 3.803 relating to naval pension and § 3.750(c) relating to waiver of retirement pay. 38 C.F.R. § 3.700; see 38 U.S.C. § 5304 (prohibition against duplication of benefits). More specifically, where entitlement to VA disability compensation was established on or after September 15, 1981, a Veteran who has received separation pay may receive disability compensation for disability incurred in or aggravated by service prior to the date of receipt of separation pay subject to recoupment of the separation pay. 38 C.F.R. § 3.700 (a)(5). Where payment of separation pay was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of separation pay. Where payment of separation pay was made after September 30, 1996, or payment of special separation benefits under 10 U.S.C. § 1174a was made on or after December 5, 1991, VA will recoup from disability compensation an amount equal to the total amount of separation pay less the amount of federal income tax withheld from such pay. Id. In a July 2010 rating decision, the AOJ awarded a 30 percent disability rating for autoimmune thyroiditis with euthyroid goiter, effective April 28, 2010. The AOJ notified the Veteran that since she had received a severance pay allowance of $34, 961.50 from the military for her service-connected autoimmune thyroiditis with euthyroid goiter, VA would withhold VA compensation until the severance amount was recouped. Records from the Defense Finance and Accounting Service document that this amount was paid in May 1995. As such, the AOJ withheld 30 percent of the Veteran’s total compensation award. A subsequent September 2011 notification letter informed the Veteran that recoupment of disability severance pay ended July 1, 2011, because although the full amount was not recouped, in light of the award of a 30 percent disability rating for another service-connected disability, the Veteran’s overall combined rating was now 80 percent without or without the Veteran’s disability severance condition. There is no indication in the record that the AOJ miscalculated the recoupment payments. Moreover, as the VA only recouped payment for approximately 14 months, only a portion of the total severance amount was recouped before it was discontinued. The main question before the Board is whether the severance pay and the service-connected disability were related to the same disability. By way of background, a December 1992 Medical Evaluation Board showed a diagnosis of B-12 deficiency with pending anti-intrinsic factor antibodies negative, anti-parietal cell antibodies, and hypotonic bladder and detrusor instability presumed secondary to B-12 deficiency. A February 1993 Physical Evaluation Board showed a diagnosis of polyglandular autoimmune disease and the Veteran was recommended to be placed on Temporary Disability Retired List (TDRL). An April 1994 rating decision granted service connection for autoimmune thyroiditis or polyglandular autoimmune syndrome and assigned a noncompensable evaluation. A September 1994 Physical Evaluation Board (PEB) showed a diagnosis of history of B12 deficiency, currently controlled with medication, associated with history of irritable bowel syndrome, headaches and weakness; and it was recommended the Veteran be discharged with severance pay. In January 1995, the Veteran was removed from the TDRI and discharged with entitlement to severance pay. As noted above, she received severance pay in May 1995. The Veteran has consistently asserted that she was paid severance pay for a separate disability, not her service-connected autoimmune thyroiditis with euthyroid goiter. However, while the Veteran is competent to describe her symptoms, she is not competent to render a medical opinion as the issue is medically complex. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). To support her contention, the Veteran has primarily relied on the PEB report, which showed a history of B12 deficiency, not autoimmune disorder. However, importantly, the November 2012 VA examiner opined that these were not two separate conditions. The examiner noted that autoimmune thyroiditis or chronic autoimmune thyroiditis is a disease in which the body interprets the thyroid glands and its hormone products T3, T4 and TSH as threats, therefore producing special antibodies that target the thyroid’s cells, thereby destroying it. It presents with hypothyroidism or hyperthyroidism and the presence of goiters. In medicine, autoimmune polyendocrine syndromes are a heterogeneous group of rare diseases. Therefore, the autoimmune thyroiditis with euthyroid goiter is a result or manifestation of polyglandular autoimmune disease by B12 deficiency. The examiner observed that the polyglandular autoimmune disease is an umbrella condition with possibly multiple conditions or manifestations of glandular or endocrine organs. The Veteran’s thyroid gland has been affected and therefore falls under the umbrella diagnosis of polyglandular autoimmune disease and is a result of this condition. Moreover, the October 2014 VA examiner also found the Veteran had an autoimmune condition during service and that the Veteran’s B12 deficiency and thyroid disorder were related to her autoimmune disorder. The examiner offered a detailed rationale for this opinion and cited to numerous medical sources as well as medical records. To summarize, the examiner observed that the evidence indicated autoantibodies during service. Moreover, the medical literature supports that autoantibodies will affect the absorption of B12. There was no other mechanism of Vitamin B12 malabsorption with anemia described in medical record. Thus, the evidence supports that B12 deficiency was related to her autoimmune disorder. The examiner also observed that the Veteran’s diagnosis of hypothyroidism was most likely an autoimmune disorder. As the VA medical opinions are based on a thorough review of the medical evidence, including the service treatment records and PEB, the Board finds that these opinions have high probative value. Thus, based on the VA medical opinions, the Board must find the Veteran received severance pay for the same disorder for which she is service-connected. As such, because both the severance pay and the service-connected disability were related to the same disability, recoupment of the severance pay from disability compensation benefits was permissible. In sum, under the law, VA is required to recoup from disability compensation an amount equal to the total amount of separation pay less the amount of federal income tax withheld from such pay unless VA discovers that the Veteran’s service department withheld the tax but later refunded it in which case it must refund the gross/pre-tax amount. See 38 C.F.R. § 3.700(a)(5). Put another way, the law merely requires offsetting VA’s own benefits payments by the amount of compensation received from the service department in order to prevent “duplication of payments,” as required by law. The Board is sympathetic to the Veteran’s situation and to any financial hardship she experienced as a result of the recoupment of the benefits. However, the Board is unable to provide a legal remedy. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (“[T]his Court must interpret the law as it exists, and cannot ‘extend... benefits out of sympathy for a particular [claimant].”). VA does not have discretion to alter the terms of that withholding based on equitable principles, despite any resulting hardship to the Veteran. 38 U.S.C. §§ 503, 7104. Accordingly, the Veteran’s challenge of the recoupment must be denied as a matter of law and the Board must finds that the withholding of compensation payments for autoimmune thyroiditis with euthyroid goiter for the purpose of recouping severance pay was proper. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because the law, rather than the facts, is dispositive of the outcome of this appeal, the benefit-of-the-doubt rule does not apply. 2. Entitlement to an effective date prior to June 1, 1995, for termination of withholding of severance and pay reinstatement of 10 percent disability rating By way of background, in January 1996, the AOJ began withholding compensation from the Veteran due to her receipt of severance pay, effective June 1, 1995. However, subsequently, in March 2009, the AOJ determined that the Veteran was entitled to receive compensation at the 10 percent rate, and the severance pay amount had been withheld in error. Therefore, the AOJ terminated the withholding of severance pay effective June 1, 1995, the initial date that severance was   withheld. The Veteran had already received compensation at the 10 percent rate from November 1, 1993, until June 1, 1995. Therefore, as withholding of severance pay had not occurred prior to this date, an earlier effective date of the termination of the withholding for severance pay is not warranted as a matter of law. See Sabonis, cited above. In sum, the Veteran received proper disability compensation at the 10 percent rating prior to June 1, 1995. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats