Citation Nr: 19123764 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-60 499 DATE: March 29, 2019 ORDER The reduction in Department of Veterans Affairs (VA) disability compensation for the purpose of recouping military drill pay for 36 days during Fiscal Year 2016 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 36 drill days in fiscal year 2016. 2. The Veteran's VA disability compensation benefits were properly withheld for recoupment of pay for 36 drill days in fiscal year 2016. CONCLUSION OF LAW The recoupment of VA disability compensation benefits due to receipt of military drill pay for 36 days in fiscal year 2016 was proper. 38 U.S.C. §§ 5107, 5304(c); 38 C.F.R. §§ 3.654, 3.700. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service in the U.S. Army from March 2002 to July 2002, January 2003 to October 2007, and from May 2008 to August 2015. This matter is on appeal from an August 2017 decision. Reduction of VA Disability Benefits for Recoupment of Drill Pay Analysis In this case, the facts are not in dispute. In May 2017, 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 2016 and having received training pay for 36 days during the period. 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. The Veteran did not respond to the notice. In May 2017, the RO notified the Veteran that it proposed to reduce his VA disability compensation benefits to reflect his receipt of the training pay that he had received in fiscal year 2016. In August 2017, VA finalized the decision and reduced the Veteran's VA compensation benefits accordingly, which resulted in a debt of $4211.62. 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). Based on a review of the available record, the Board finds that recoupment of the Veteran's VA compensation to account for his receipt of 36 days of military drill pay during fiscal year 2016 was warranted. The Board has considered the Veteran's contention that the 36 drill days occurred prior to May 2016 when he was being paid at the 90 percent rate so the amount of recoupment for the disability benefits should be based on the 90 percent disability compensation rate, rather than the 100 percent disability compensation rate; however, in May 2017 correspondence, the RO specified that the adjustment of compensation benefits would be based on the amount (i.e., rate) of compensation that the Veteran was receiving at the end of fiscal year 2016. At the end of fiscal year 2016, the Veteran was being paid at the 100 percent disability rate. The Veteran has provided no evidence or argument indicating that the information provided by DMDC that he received 36 days of drill pay during fiscal year 2016 is incorrect. (Continued on the next page)   The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The application of the law to the facts in this case is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel