Citation Nr: 19106906 Decision Date: 01/30/19 Archive Date: 01/29/19 DOCKET NO. 15-30 252 DATE: January 30, 2019 ORDER The reduction in Department of Veterans Affairs (VA) disability compensation for the purpose of recouping military drill pay for 78 days during Fiscal Year 2008, 77 days during Fiscal Year 2009, 59 days during Fiscal Year 2010, 63 days of drill pay for Fiscal Year 2011, and 37 days for Fiscal Year 2012 was proper, and the appeal is denied. FINDINGS OF FACT 1. The Defense Manpower Data Center (DMDC) advised VA that the Veteran received drill pay for 78 drill days in fiscal year 2008, 77 drill days in fiscal year 2009, 59 drill days in fiscal year 2010, 63 drill days in fiscal year 2011, and 37 drill days in fiscal year 2012. 2. The Veteran’s VA disability compensation benefits were properly withheld for recoupment of pay for 78 drill days in fiscal year 2008, 77 drill days in fiscal year 2009, 59 drill days in fiscal year 2010, 63 drill days in fiscal year 2011, and 37 drill days in fiscal year 2012. CONCLUSION OF LAW The recoupment of VA disability compensation benefits due to receipt of military drill pay for 78 drill days in fiscal year 2008, 77 drill days in fiscal year 2009, 59 drill days in fiscal year 2010, 63 drill days in fiscal year 2011, and 37 drill days in fiscal year 2012, was proper. 38 U.S.C. §§ 5107, 5304(c) (2012); 38 C.F.R. §§ 3.654, 3.700 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1986 to November 1999, and from January 2003 to January 2005, with additional service in the Army Reserves. This matter is before the Board of Veterans’ Appeals (Board) on appeal from December 2011 and June 2015 decisions by a Department of Veterans Affairs Regional Office (RO). In August 2018, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board observes that additional evidence has been added to the claims file following the last adjudication by the RO in the July 2015 and September 2017 statement of the case (SOC), including a Chronological Statement of Retirement Points and leave and earning statements (LES) dating from 2008 through 2012. However, during the August 2018 Board hearing, the Veteran waived AOJ consideration of evidence submitted by him or his representative. 1. Reduction of Disability Compensation for Purpose of Recouping Military Drill Pay The law prohibits the receipt of VA disability compensation benefits for any period for which a person receives active service pay. 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. 38 U.S.C. § 5304(c); 38 C.F.R. §§ 3.654, 3.700. Reservists or members of the National Guard may waive their VA disability compensation 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). A November 1999 rating decision shows that service connection was granted for several disabilities, with effective dates established from November 1999. The Veteran has received VA compensation payments since that time. In March 2011, VA sent VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, to the Veteran. The form notified the Veteran that, based on his social security number, the DMDC had identified him as having been a reservist or guardsman during fiscal year 2009 and having received training pay for 77 days. 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, 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. Additionally, in August 2011, the Veteran was separately sent VA Form 21-8951 for fiscal years 2008, 2009 and 2010 noting receipt training pay for 78, 77 and 59 days respectively. In an August 2011 letter, the AOJ notified the Veteran that it proposed to reduce his VA disability compensation benefits to reflect his receipt of training pay in fiscal years 2008 through 2010. Thereafter, in August 2011, the Veteran submitted VA Form 21-8951-2 for fiscal years 2008 through 2010. Each form was signed by the Veteran and his Unit Commander. For fiscal year 2008, the Veteran and his Unit Commander certified 78 training days. For fiscal year 2009, the Veteran and his Unit Commander certified 77 training days. Lastly, for fiscal year 2010, the Veteran and his Unit Commander certified 59 training days. That form also noted that the number of days a reservist received training pay as one full day’s duty pay was based on each 4-hour training assembly attended. As such, the form noted that a reservist might be credited with 4 days training pay per drill weekend. In December 2011, VA finalized the decision to reduce the Veteran’s VA compensation benefits. In this regard, the letter shows that the AOJ reduced the Veteran’s benefit payments based on the number of training days reported by the Veteran and his Unit Commander in August 2011. In his January 2012 notice of disagreement (NOD), the Veteran again asserted that his benefit payments were being withheld for an incorrect number of drill pay days for each fiscal year. In February 2012, the Veteran submitted a memorandum from the Department of the Army validating the number of drill days performed for fiscal years 2008 to 2010. The memorandum noted 79 total days for 2008, 48 total days for 2009, and 62 total days for 2010. The letter was signed by a commanding officer. The memorandum did not note how many training days the Veteran was credited for purposes of drill pay. In November 2012, the Veteran submitted VA Form 21-8951 for fiscal year 2011 in which VA had noted 66 training days. The Veteran indicated that that number of training days was incorrect and noted that he had received training pay for 63 days. That form was signed by the Veteran and his Unit Commander. In April 2013, the Veteran submitted another VA Form 21-8951 for fiscal year 2012 in which VA had noted 47 training days. The Veteran indicated that that number of training days was incorrect and noted that he had received training pay for 37 days. That form was also signed by the Veteran and his Unit Commander. In a June 2015 letter, the AOJ notified the Veteran of drill pay adjustments being made to his award of benefits, including 63 days of drill pay for fiscal year 2011, and 37 days of drill pay for fiscal year 2012. In addition, the record shows that in June 2015, the AOJ requested verification of the exact number of training days for fiscal years 2008 through 2012 from the Veteran’s regiment. The AOJ issued a formal finding on unavailability of drill pay information from Reserve/National Guard Unit that same month. In a June 2015 NOD, the Veteran stated that the number of training days for fiscal year 2011 should have been 53 and not 63. Additionally, the Veteran submitted a U.S. Army Human Resources Command web page print-out showing retirement points for the Veteran’s years of reserve service. A review of that document shows that the retirement points were based on a fiscal year beginning November 26 and ending the following November 25. Accordingly, the document calculated training days pursuant to a different fiscal year. In his August 2015 VA Form 9, Substantive Appeal, the Veteran asserted that based on the statement of retirement points, his actual drill days were as follows: 79 drill days for fiscal year 2008; 48 drill days for fiscal year 2009; 62 drill days for fiscal year 2010; 53 drill days for fiscal year 2011; and 37 drill days for fiscal year 2012. In support of this assertion, the Veteran submitted a Chronological Statement of Retirement Points based on performance of inactive duty training. Lastly, in a November 2018 email, the Veteran asserted that his official leave and earning statement (LES) for each fiscal year showed the following: 73 training days for fiscal year 2008; 48 training days for fiscal year 2009; 62 training days for fiscal year 2010; 65 training days for fiscal year 2011; and 42 training days for fiscal year 2012. A LES print-out was also submitted in November 2018. A review of that record shows intermittent monthly statements dating from December 2008 through August 2012. Based on a review of the evidence of record, the Board finds that recoupment of the Veteran’s VA compensation to account for his receipt of 78 days of military drill pay during fiscal year 2008, 77 days of military drill pay during fiscal year 2009, 59 days of military drill pay during fiscal year 2010, 63 days of military drill pay during fiscal year 2011, and 37 days of military drill pay during fiscal year 2012, was warranted. The Board has considered the various documentations submitted by the Veteran as to the number of drill days he performed during this period on appeal. Initially, the Board notes that with regard to the Chronological Statement of Retirement Points and LES statements, the information regarding active duty days does not appear complete. For instance, the LES statements for fiscal year 2008 only shows information beginning in December 2008, and LES statements for fiscal year 2012 only shows information through August 2012. Similarly, the Chronological Statement of Retirement Points only incudes information through August 2012. More importantly, a review of above-mentioned documentation does not certify the number of drill pay days for which the Veteran actually received payment (i.e. accounting for the number of 4-hour training assemblies equating to one drill pay day). Instead, the only evidence of record certifying the number of paid drill days which accounted for the number of 4-hour training assemblies is the various VA Form 21-8951-1 and 21-8951-2 submitted by the Veteran. Importantly, those forms were signed by both the Veteran and his Unit Commander. Accordingly, the Board finds those forms the most probative evidence of record. As the recoupment of the disability benefits for fiscal years 2008 through 2012 were based on the Veteran and his Unit Commander’s certification, the Board finds that the correct amount of compensation benefits was properly withheld. (Continued on the next page)   The application of the law to the facts in this case is dispositive. As the Veteran cannot receive both drill pay and VA benefits simultaneously, VA is entitled to recoup VA benefits the Veteran was paid at that time. In light of the foregoing, the Board finds that the AOJ’s decision to enact a drill pay adjustment to recoup from VA benefits for paid drill days for fiscal years 2008 through 2012, was proper. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel