Citation Nr: 18151855
Decision Date: 11/20/18	Archive Date: 11/20/18

DOCKET NO. 16-11 177A
DATE:	November 20, 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) 2011 was proper, and the appeal is denied. 
FINDING OF FACT
The Defense Manpower Data Center (DMDC) advised VA that the Veteran received active service drill pay for a period of 100 days in FY 2011. 
CONCLUSION OF LAW
The reduction in the VA disability compensation benefits to offset the concurrent receipt of active service drill pay for concurrent receipt of active service drill pay for a period of 100 days in FY 2011, was proper.  38 U.S.C. §§ 5107, 5304(c) (2012); 38 C.F.R. §§ 3.654, 3.700 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from February 2004 to February 2009.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 decision of the Department of Veterans Affairs.   
Whether the reduction in VA disability compensation due to concurrent receipt of active service drill pay for fiscal year 2011 was proper.
The Veteran disputes the propriety of the reduction of her VA disability compensation benefits to offset the concurrent receipt of active service drill pay.  
As relevant to this appeal, 38 U.S.C. § 5304(c) prohibits the receipt of VA disability compensation benefits for any period for which the person receives active service pay.  See 38 C.F.R. §§ 3.654, 3.700.  This includes active duty pay, drill, and active duty for training payments, and inactive duty for 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.  A 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 DMDC advised VA that the Veteran received active service drill pay for a period of 100 days in fiscal year 2011.
In a November 2014 letter, the RO notified the Veteran that it proposed to reduce her VA disability compensation benefits to reflect her receipt of the training pay that she had received in fiscal year 2011.  In February 2015, VA finalized this decision and reduced the Veteran’s VA compensation benefits accordingly.
The Board acknowledges the Veteran’s contentions regarding the schedule of the adjustment to her compensation benefits; however, the Board also notes that the Veteran has not submitted any specific contentions regarding the number of drill days that she attended for fiscal year 2011. 
Based on a review of the record, the Board finds that the RO appropriately withheld the Veteran’s VA compensation benefits for the period in question for FY 2011, during which period she was in receipt of military drill pay.  Accordingly, the reduction in the VA disability compensation benefits to offset the concurrent receipt of active service drill pay for concurrent receipt of active service drill pay for a period of 100 days in FY 2011, was proper.  
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 the 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.
 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Rescan, Associate Counsel