Citation Nr: 1828014 Decision Date: 05/09/18 Archive Date: 05/18/18 DOCKET NO. 14-30 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether the amount of the retroactive payment awarded to the Veteran based on a rating decision dated in July 2012, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision and October 2012 administrative decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2018. A transcript of this hearing is of record. FINDINGS OF FACT 1. In a July 2012 rating decision the RO implemented a June 2012 Board decision granting entitlement to an effective date of January 31, 1969, for the grant of service connection and assignment of a 20 percent rating for traumatic chest wall injury with retained bullet, 2. In an October 2012 administrative decision the RO notified the Veteran of the July 2012 decision, relied upon updated and complete compensation information, and explained the retroactive benefits due to the Veteran based upon the assigned earlier effective date. CONCLUSION OF LAW The amount of the retroactive payment awarded to the Veteran based on a rating decision dated in July 2012, was proper. 38 U.S.C. § 5110 (2018); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that retroactive benefits awarded pursuant to the assignment of an earlier effective date, were improperly calculated. At the hearing before the undersigned, the Veteran asserted that a calculation of the retroactive benefits was made in July 2008 and that, based upon that calculation, he was entitled to an additional amount of retroactive compensation. The Veteran's contention is that the entire calculation was made in 2008 and that the only thing that had not been done was full payment. Review of the claims file reveals a user calculation regarding retroactive payments dated in April 2008. This calculation is from January 31, 1969, to March 31, 2008, and appears to identify a retroactive award of $50,244.93. However, it does not identify any withholding of the Veteran's retired pay from January 1969 to July 1974. The record includes a July 2008 VA Memorandum that indicates a proposal to grant service connection for chest wall injury with retained bullet, retroactive to January 31, 1969, based upon clear and unmistakable error in a March 1969 rating decision. The memorandum noted that it would result in a retroactive payment of $50,244.93. However, it was further noted that there was no concurrence with this decision. In a rating decision dated in July 2008 the Veteran was granted entitlement to service connection for traumatic chest wall injury with retained bullet, right lung and was granted an evaluation of 20 percent, effective February 14, 2007. In the notice letter dated in July 2008 the Veteran was informed of the adjustment in his compensation effective March 1, 2007, explaining that payment begins the first day of the month following the effective date. A July 2008 VETSNET Award Print indicates a net effect of award as of generation of $4,264 and that this award was system generated from March 1, 2007. Subsequently, in a July 2012 rating decision the RO implemented a June 2012 Board decision granting entitlement to an effective date of January 31, 1969, for the grant of service connection and assignment of a 20 percent evaluation for traumatic chest wall injury with retained bullet, Thereafter, a user calculation dated in October 2012, calculated the retroactive award from July 1974 to September 2012. This calculation identified that there was no retroactive award from March 1, 2007, to September 2012. The total retroactive award was calculated at $41,641.57. As noted above, prior to the implementation of the earlier effective date, the Veteran was in receipt of service-connected benefits for traumatic chest wall injury with retained bullet, effective February 14, 2007, with an evaluation of 20 percent disabling. The Veteran had already received payment for benefits from the original grant of service connection, effective February 14, 2007. In October 2012 information regarding the Veteran's receipt of retirement pay from January 31, 1969, to July 31, 1974, was received from the Defense Finance and Accounting Service (DFAS). In an October 2012 administrative decision, the Veteran was notified of the calculated retroactive award of benefits. In the notification, the RO discussed the amounts paid from January 31, 1969, through to December 1, 2011. This discussion included an explanation of amounts withheld based upon retired pay that the Veteran received from January 1969 to July 1974. In addition, the notification indicated that the calculation was based upon the Veteran's combined evaluation, which included all of the Veteran's service-connected disabilities. In e-mail communications dated in February 2013 and associated with the claims file it was noted that the Veteran was not going to receive any additional retroactive award, which was previously withheld due to retirement withholding, due to the rating and notification letter done in October 2012. The response indicated that the Veteran was in receipt of Temporary Disability Retired Pay from January 1969 to July 1974. As his compensation was still less than his retired pay, the amount shown as withheld was noted to be correct. There is a prohibition on the concurrent payment of military retired pay and VA disability compensation pay without a waiver of a portion of the retired pay. See 38 U.S.C. §§ 5304, 5305. In this regard, 38 C.F.R. § 3.700 provides that no more than one award of pension, compensation or emergency officers', regular or reserve retirement pay will be made concurrently to any person based on his or her own service except as provided in § 3.803 relating to naval pension and § 3.750(c) relating to waiver of retirement pay. According to 38 C.F.R. § 3.750 (c), a waiver of military retired pay is necessary in order to receive disability compensation when a veteran is eligible for both military retired pay and disability compensation but is not eligible under paragraphs (b)(1) or (b)(2) of this section to receive both benefits at the same time. Legislation has been enacted to allow certain veterans to receive some measure of concurrent payments for both their military retired pay and their VA disability compensation; however, these programs are not applicable here. The Combat Related Special Compensation (CRSC) program allows for receipt of partial or full retired military pay and VA disability compensation to eligible military retirees with combat-related disabilities, but this is not a VA program and the pertinent military department makes the final determination regarding qualifying disabilities. The Concurrent Retirement and Disability Payment (CRDP) is a program available to military retirees who retired for length of service or served a minimum of 20 years of active service. The Veteran did not retire for length of service or serve on active duty for 20 years. The Board finds that the amount of retroactive payment awarded to the Veteran based upon a rating decision dated in July 2012, was proper. In an October 2012 administrative decision the amount of retroactive payment was thoroughly described. The Board acknowledges that the amount awarded is less than that calculated in a July 2008 report. However, the October 2012 administrative decision took into account the Veteran's prior retirement pay, prior retroactive awards that occurred since the July 2008 VA Memorandum, and the Veteran's combined rating. The accounting relied upon in the October 2012 administrative decision indicates that the Veteran had already been paid, for the disability for which he was granted an earlier effective date, beginning February 14, 2007, the prior effective date. In addition, after consultation with DFAS, the prior withholding of retirement pay was considered in the October 2012 administrative decision. In short, the October 2012 administrative decision relied upon updated and complete compensation information. In addition, the exceptions created with CRSC and CRDP are not for application. The Board finds that the amount of the retroactive payment awarded to the Veteran based on a rating decision dated in July 2012, as calculated in October 2012, was proper, and the appeal is denied. ORDER The amount of the retroactive payment awarded to the Veteran based on a rating decision dated in July 2012, was proper, and the appeal is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs