Citation Nr: 18149248 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 18-22 166 DATE: November 9, 2018 ORDER The reduction in Department of Veterans Affairs (VA) disability compensation due to concurrent receipt of active service drill pay for Fiscal Year (FY) 2016 was proper. FINDINGS OF FACT 1. The Veteran received active service drill pay for a period of 35 days in Fiscal Year (FY) 2016; throughout that year, the Veteran was in receipt of VA disability compensation benefits. 2. In a May 2017 letter, the RO proposed a reduction of the Veteran’s VA disability based on the 35 days of active duty drill pain. The Veteran requested a waiver of his VA benefits in response, but asserted that the amount in dispute had already been recouped. 3. An October 2017 decision reduced the Veteran’s VA compensation to account for his receipt of military pay for drill training for 35 days during FY 2016. The amount recouped as a result had not already been recouped by VA. CONCLUSION OF LAW The reduction in the VA disability compensation benefits to offset the concurrent receipt of active service drill pay for a period of 35 days in FY 2016 was proper. 38 U.S.C. §§ 5107, 5304(c) (2012); 38 C.F.R. §§ 3.654, 3.700 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1989 to June 1990, December 1990 to May 1991, and in August 2007, with several additional decades of service in the Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2017 decision issued by a VA Regional Office (RO) that reduced the Veteran’s VA disability compensation based on his concurrent receipt of active service drill pay for a period of days in Fiscal Year (FY) 2016. The Veteran disagreed with this decision in an October 2017 Notice of Disagreement, arguing that his VA disability compensation payments had already been reduced for FY 2016 and disputing the propriety of the reduction of his VA disability compensation benefits on the basis of his concurrent receipt of active service drill pay for a period of days in FY 2016. He perfected a timely appeal in April 2018. Whether the reduction in VA disability compensation due to concurrent receipt of active service drill pay for Fiscal Year 2016 was proper. Generally, VA pension, compensation, or retirement pay on account of any person’s own service shall not be paid to such person for any period for which such person receives active service pay. See 38 U.S.C. § 5304(c); 38 C.F.R. §§ 3.654, 3.700. This includes active duty pay, drill, and active duty for training payments, and inactive duty training payments made to Reservists and members of the National Guard. Id. Reservists may waive their pension, compensation, or retirement pay for periods of field training, instruction, other duty, or drills; such waiver may include prospective periods and contain a right of recoupment for the days for which the reservist did not receive payment for duty by reason of failure to report for duty. 38 C.F.R. § 3.700(a)(1)(iii). The Defense Manpower Data Center indicated that the Veteran received military pay for 72 days in FY 2014, for 65 days in FY 2015, and for 35 days in FY 2016. By way of history, in September 2015 letters, in pertinent part, the Veteran was provided VA Forms 21-8951, Notices of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances. The purpose of these forms is to notify a veteran that VA has received information (from the Defense Manpower Data Center) that he was serving on active duty while also receiving VA benefits; to give a veteran an opportunity to correct that information; and to give a veteran an opportunity to waive receiving either his/her military pay or VA benefits. The form notifies the Veteran that VA will waive VA compensation or pension for the number of training days unless a waiver is received from a veteran. The Veteran opted to waive his VA benefits for 72 days in FY 2014. In May 2016, the Regional Office (RO) reduced the Veteran’s benefits effective June 1, 2016 to August 13, 2016 to reflect the withholding of VA compensation benefits when the Veteran received military pay. VA also indicated that payment will be made at the beginning of each month for the prior month. In June 2016, the Veteran was again provided with VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, for 65 days in FY 2015. In July 2016, the Veteran opted to waive his VA benefits for 65 days in FY 2015. In September 2016, the RO retroactively adjusted his compensation benefits by $133.17 per month from October 1, 2015 to December 6, 2015, based on 65 drill days, which resulted in a debt of $288.54. In a subsequent September 2016 letter, the VA Debt Management Center notified the Veteran that it would withhold VA benefits until the overpaid amount is recouped effective December 2016. In a subsequent October 2016 letter, the VA Debt Management Center notified the Veteran that it would withhold VA benefits until the overpaid amount is recouped, and adjusted the effective date to January 2017. In May 2017, the Veteran was again provided with VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, for 35 days in FY 2016. In June 2017, the Veteran opted to waive his VA benefits for 35 days in FY 2016. The Veteran also submitted an accompanying statement to the VA Form 21-8951 contending that the dates mentioned in the May 2017 correspondence were already deducted from his VA compensation. He further reported that his debt for FY 2016 was $288 and that he did not receive compensation in May 2017 or June 2017 as part of repayment. In an October 2017 letter, VA reported that VA overpaid the Veteran’s benefits due to 35 days of drill pay in FY 2016 and that VA would withhold benefits until the adjustment is complete. In a subsequent October 2017 letter, the VA Debt Management Center notified the Veteran that it would withhold VA benefits in the amount of $25 per month until the overpaid amount was recouped effective January 2018. In his October 2017 Notice of Disagreement, the Veteran reported that for FY 2016 money was withheld in the amount of $133.57 in April 2017, $133.57 in May 2017, and $21.37 in June 2017 for a total of $288.51. He also stated that money was also withheld in the amount of $130.94 in July 2016, $130.94 in August 2016, and $52.38 in September 2016. He argued that these amounts resulted in multiple deductions for the same drill pay period in FY 2016. The Board finds that the Veteran’s argument is unavailing because it is based upon incorrect years. As discussed above, the withholding of VA benefits from July 2016 to September 2016 was based on the 72 drill days that occurred in FY 2014. The withholding of benefits from April 2017 to June 2017 for a total of $288.51 was based on the 65 drill days that occurred in FY 2015. Based on a review of the record, the Board finds that the RO properly withheld the Veteran’s VA compensation benefits for 35 days in FY 2016, during which he was in receipt of military drill pay. The Veteran did not waive his receipt of military pay nor has he asserted that he did not receive this pay. The United States Court of Appeals for Veterans Claims (Court) has held that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). The Board is without authority to authorize the simultaneous receipt of active duty pay and VA compensation benefits. Additionally, the Court has held that, in a case where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As there is no basis in the law to grant this appeal, it must be denied. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel