Citation Nr: 18149384 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 17-49 904 DATE: November 9, 2018 ORDER The Agency of Original Jurisdiction (AOJ) properly withheld the Veteran's VA compensation benefits for 18 days of fiscal year 2014, during which he was in receipt of active duty pay; the appeal is denied. FINDINGS OF FACT 1. The Defense Manpower Data Center (DMDC) indicated that the Veteran received military pay for 116 days of fiscal year 2014, adjusted to 18 days by the AOJ. 2. The Veteran has not submitted a completed VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances in which he waived his military pay for fiscal year 2014. CONCLUSION OF LAW The AOJ properly withheld the Veteran’s VA compensation benefits for 18 days of fiscal year 2014, during which he was in receipt of active duty pay. 38 U.S.C. § 5304; 38 C.F.R. §§ 3.654, 3.700. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had periods of active duty service from November 2004 to May 2005 and from January 2011 to January 2014. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 decision. Drill Pay 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). In this case, VA sent the Veteran a VA Form 21-8951, “Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances.” The form indicated that, based on his social security number, the DMDC had identified him as having been a reservist or guardsman during fiscal year 2014 and having received military pay for 116 days during that period. The form advised the Veteran that active or inactive duty training pay could not legally be paid concurrently with VA disability compensation. He was advised that he could elect to keep the training pay and waive his VA benefits for the days when he was paid training pay and that his future benefits would be adjusted accordingly. He was also advised that, if he did not return the waiver within 60 days, it would be assumed that he wished to waive VA compensation or pension for the number of days printed on the front of the form. The Veteran did not respond. In an August 2015 letter, the AOJ notified the Veteran that it proposed to reduce his VA disability compensation benefits to reflect his receipt of the active duty pay that he had received in fiscal year 2014. The Board notes that the AOJ concluded in its August 2015 letter that, although the DMDC had informed VA that the Veteran had received active duty pay for a period of 116 days in FY 2014, VA had determined that, in fact, the Veteran’s actual active service days in FY 2014 were only 18 days. In April 2016, VA finalized this decision and reduced the Veteran’s VA compensation benefits accordingly. (Continued on the next page)   Based on a review of the record, the Board finds that the RO properly withheld the Veteran’s VA compensation benefits for 18 days of fiscal year 2014, during which he was in receipt of active duty pay. The Veteran did not waive his receipt of active duty military pay nor has he provided the necessary documentation to show that the information is incorrect. 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. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel