Citation Nr: 18155531 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-09 884 DATE: December 4, 2018 REMANDED The issue of whether the withholding of drill pay or termination of VA benefits was proper for Fiscal Years 2009 through 2012, to include the validity of any debt created, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2004 to August 2008, with various additional periods of active duty in the U.S. Air Force National Guard as Active Guard Reserve (AGR) under section 502(f) of Title 32, including from January 2009 to May 2009, May 2009 to November 2009, and March 2010 to September 2012. This matter is before the Board on appeal from a June 2013 RO decision. Although the RO characterized the appeal as relating to withholding or termination of VA benefits during fiscal years (FYs) 2010 and 2012, the Board notes that, in November 2009, the Veteran challenged the RO’s initial termination of benefits in August 2009. Moreover, in appealing the June 2013 RO determination, the Veteran continued to challenge actions the RO has retroactively taken (during this appeal period) for fiscal years (FYs) 2009 through 2012. Thus, the Board finds that FYs 2009 through 2012 are part of the current appeal. To the extent that the RO has additionally withheld VA benefits for FYs 2013 to present, the Veteran has not filed an appeal as to those withholdings. Withholding of Benefits for FYs 2009 through 2012 The Board finds that remand is necessary to clarify the specific actions taken regarding the Veteran’s VA disability benefits for fiscal years (FYs) 2009 through 2012, and to determine whether there was any overpayment created for those years specifically. In general, there is a prohibition on the concurrent payment of VA disability compensation and active service pay. 38 U.S.C. § 5304(c); 38 C.F.R. §§ 3.654, 3.700. Here, the Veteran’s full-time duty periods with the National Guard under section 502(f) of Title 32 from 2009 through 2012 are considered active service. 38 U.S.C. §§ 101(22)(C),(24), 3301(1)(C)(ii). The RO has variously retroactively withheld, terminated, and reinstated the Veteran’s VA disability benefits for FYs 2009 through 2012 based on the Veteran’s various periods of full-time National Guard service. Most recently and as is relevant here, in a November 2015 proposed action and a February 2016 implementation letter, the RO determined that, because of the Veteran’s full time National Guard service during the relevant periods, VA benefits would be terminated for the periods from January 12, 2009, to May 13, 2009; May 30, 2009, to November 16, 2009; and March 1, 2010, to October 1, 2012. The letters further noted that drill pay that was previously withheld for FYs 2011 and 2012 would be repaid because the Veteran was considered active duty for those years and, as such, his benefits during those periods were not subject to drill pay withholding. However, it was determined that drill pay would be retroactively withheld for the period from May 13, 2009, through May 29, 2009. The Veteran contends that the withholdings or terminations were improper because his full-time National Guard duty under Section 502(f) did not constitute active service. Thus, he argues that any debts owed or created from the withholdings/terminations were invalid. Alternatively, he argues that such amounts should be waived. Indeed, he requested a waiver of various debts in July 2016, and his request was denied in an unappealed decision in September 2016. Nevertheless, after reviewing the file, it is unclear from the record the amounts withheld and/or amounts repaid (for previously withheld drill pay) to the Veteran during the relevant FYs from 2009 through 2012. In this regard, a September 2016 decision on the Veteran’s waiver request detailed four separate debts, including one (“Debt 3”) that covered a debt period from January 12, 2009 to November 14, 2015. However, there is no indication as to what amounts in that debt period, if any, were attributable to FY 2009 through 2012. Additionally, in a June 2016 statement, the Veteran stated that he repaid an overpayment in 2009 or 2010, though it is unclear whether that was related to drill pay withholding. Thus, the Board finds that, on remand, in order to properly address the validity of any debt created by withholding of benefits for drill pay or active service pay, an accounting of withholdings and repayments must be done for FYs 2009 through 2012 to determine the amount of debt created during the relevant period. Additionally, on remand, the RO should ensure that all relevant records, including those from the Debt Management Center, are associated with the claims file, as, in July 2016, the Veteran referenced receiving a letter regarding a debt (Debt 3) that does not appear to be of record. The matter is REMANDED for the following action: 1. Request from the Veteran and/or the Debt Management Center any outstanding relevant records pertaining to debt for FY 2009 through 2012, to include a 2015 or 2016 letter from the Debt Management Center regarding “Debt 3” in the amount of $10,325.10. 2. Then, conduct a complete accounting of the withholdings and repayments for FYs 2009 through 2012, and provide a report on the validity of the amounts owed. The report should indicate the source or reason for each debt. 3. After completing the above, and any additional development deemed warranted, readjudicate the appeal. If the appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Fagan, Counsel