Citation Nr: 18151463 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-08 804A DATE: November 20, 2018 ORDER A waiver of recoupment of a special separation benefit (SSB) is denied. REMANDED The claim for an increased rating for a lumbar spine disability is remanded. FINDINGS OF FACT 1. The Veteran received an SSB upon his discharge from the Air Force in August 1992. See August 1992 DD Form 214. 2. In a May 2011 rating decision, the Veteran was awarded a 10 percent disability rating for tinnitus, and began receiving VA disability benefits, effective July 2010. In March 2013, the Regional Office (RO) notified the Veteran that it would begin withholding his VA disability compensation payments in order to recoup the after-tax amount of the Veteran’s SSB. See Notification Letters dated January 2013, March 2013. 3. There is no indication that the Veteran’s SSB was an award of disability severance pay. 10 U.S.C. §§ 1203, 1206, 1212; See January 2013 Statement in Support of Claim (reporting that the Veteran was offered an SSB because the armed services at the time were overmanned). CONCLUSION OF LAW The criteria for a waiver of recoupment of a special separation benefit have not been met. 10 U.S.C. §§ 1174, 1174a, 1203, 1206, 1212; 38 C.F.R. §§ 1.962, 1.963, 3.700(a)(5)(iii). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Air Force from May 1983 to August 1992. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, and a March 2013 administrative decision by the VA RO in Phoenix, Arizona. The Veteran is seeking a waiver of recoupment of a special separation benefit (SSB) that he was issued when he separated from the Air Force in 1992. The Veteran claims that the withholding of his VA benefits to recoup the SSB caused him undue financial hardship. United States statute and VA regulations provide that Veterans who received separation pay and who established entitlement to disability compensation on or after September 15, 1981 may receive such compensation subject to the recoupment of their separation pay. 10 U.S.C. § 1174(h)(2); 38 C.F.R. § 3.700(a)(5)(i). The only separation pay exempted from recoupment in such cases is disability severance pay. See 10 U.S.C. §§ 1203, 1206, 1212. Where payment of special separation benefits (SSB) 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 SSB less the amount of Federal income tax withheld from such pay. 38 C.F.R. § 3.700(a)(5)(iii). As noted in the above findings of fact, the Veteran was awarded VA disability compensation, effective July 2010, and VA subsequently recouped the after-tax amount of his SSB. The RO’s actions were in accord with the VA regulations just outlined and there is no indication that the Veteran’s SSB was an award of disability severance pay. Therefore, the recoupment of the Veteran’s SSB was proper. The Veteran contends that a waiver of recoupment is warranted, since the recoupment caused him undue financial hardship. In support of this argument, the Veteran submitted evidence indicating that during the period in which VA was withholding benefits, his net income was between zero and sixty dollars per month. See June 2013 Financial Status Report; July 2013 Statement in Support of Claim. The Veteran also reported that during this time he was caring for his elderly father. See January 2013 Statement in Support of Claim. The Veteran has cited 38 C.F.R. § 1.963, which provides that a regional office Committee on Waivers and Compromises will waive recovery of any overpayment that results from participation in a benefit program administered under any law by VA when collection would be against equity and good conscience. The Committee is directed to take into consideration whether recovery of the overpayment would cause “undue hardship,” defined as the deprivation of basic necessities of the debtor or his family. 38 C.F.R. § 1.965. It is clear that the withholding of disability payments caused the Veteran significant hardship but there is no indication that the withholding resulted in “deprivation of basic necessities of the debtor or his family.” As such, the law prevents the Board from granting any relief on this basis. The SSB which was recouped by withholding the Veteran’s disability payments was not a debt or overpayment resulting from participation in a benefit program administered by VA. Rather, the SSB was administered by the Department of Defense, and its recoupment by VA is statutorily mandated. See 10 U.S.C. 1174(h)(2). Therefore, 38 C.F.R. §§ 1.963 and 1.965 do not apply in this case, and there is no legal basis for a waiver of recoupment on the grounds of financial hardship. Accordingly, a waiver of the recoupment of the Veteran’s SSB is not warranted. REASONS FOR REMAND The Veteran’s lumbar spine disability is rated as 20 percent disabling from July 28, 2010 and 40 percent disabling from July 20, 2015. He is separately rated for left lower extremity radiculopathy associated with his lumbar spine disability, at 20 percent disabling from July 20, 2015 and 40 percent from September 15, 2015. The Veteran contends that these ratings do not accurately reflect the severity of his disability. The Veteran has been afforded three VA examinations throughout the claim period evaluating his service-connected lumbar spine disability, in June 2011, July 2015, and November 2016. VA joint examinations, including spine examinations, must include an opinion as to whether pain significantly limits functional ability on repeated use over time or during flare ups. 38 C.F.R. § 4.40; Sharp v. Shulkin, 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran reported intermittent flare ups of his spine disability at both the June 2011 and July 2015 VA examinations. However, neither examiner included an opinion as to whether pain significantly limited the Veteran’s functional ability during flare ups. Therefore, neither of these examinations is adequate for VA rating purposes. In addition, in an April 2016 rating decision, the RO granted the Veteran a separate compensable rating for left lower extremity radiculopathy, effective July 20, 2015, the date of the Veteran’s second VA examination. However, the claims file reveals evidence of left lower extremity radiculopathy dating from November 2011. See November 2011 VA Treatment Record. Therefore, a remand is necessary to provide the Veteran with an adequate VA examination and opinion as to whether pain causes him significant functional impairment on repeated use over time and during flare ups, and as to the severity of the Veteran’s left lower extremity radiculopathy both before and after July 20, 2015. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., schedule the Veteran for a VA spine examination to evaluate his lumbar spine disability and associated left lower extremity radiculopathy. In particular, the examiner should render an opinion as to whether pain significantly limits the Veteran’s functional ability on repeated use of his lumbar spine over time, and during flare ups of his lumbar spine disability. If feasible, the examiner should estimate any functional loss in terms of limitation of motion. The examiner should also render an opinion as to the severity of the Veteran’s left lower extremity radiculopathy throughout the claim period, both before and after the Veteran’s July 20, 2015 VA examination. The examiner’s attention is directed to a November 2011 VA treatment record noting continuous low back pain radiating halfway down the left thigh, as well as occasional weakness in the legs. (Continued on the next page)   3. Readjudicate the claim. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel