Citation Nr: 19142575 Decision Date: 06/03/19 Archive Date: 06/03/19 DOCKET NO. 14-34 049 DATE: June 3, 2019 ORDER The Agency of Original Jurisdiction (AOJ) properly withheld the Veteran’s VA compensation benefits for 42 days in fiscal year 2011, during which he was in receipt of military drill pay, and the appeal is denied. FINDINGS OF FACT 1. The Veteran was granted VA disability compensation benefits effective January 7, 2011. 2. The Veteran received military drill pay for 42 days in fiscal year 2011. CONCLUSION OF LAW The AOJ properly withheld the Veteran’s VA compensation benefits for 42 days in fiscal year 2011, during which he was in receipt of military drill pay. 38 U.S.C. § 5304; 38 C.F.R. §§ 3.400, 3.654, 3.700. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1982 to April 1995, November 2001 to November 2003, November 2004 to May 2005, and November 2007 to January 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas. The appeal was previously before the Board in April 2018, and was remanded to the AOJ for additional development, to include obtaining the Veteran’s leave and earnings statements and verification of training pay in 2011. The above-referenced development has been completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Propriety of withholding of VA compensation benefits for fiscal year 2011 VA law and regulations prohibit the receipt of VA disability compensation benefits for any period for which the person receives active service pay. 10 U.S.C. § 12316; 38 U.S.C. § 5304(c); 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. Veterans receive one day of drill pay for each four-hour drill/training session they attend which is also known as “weekend drill.” Units may hold one or two of these sessions per day over a weekend or during a weekday. Veterans receive one day of drill pay for each day of the annual, two-week, active duty training or “summer camp” they attend. During a single fiscal year, reservists and members of the National Guard commonly receive drill pay for a total of 63 days, which consists of 48 armory drills or training sessions, and 15 days of active duty training. Members may receive more or less days as required by their specific unit and missions. Each year in which drill pay is performed requires a separate written waiver of compensation or military pay. When required, VA must withhold benefits for the number of training days performed. This withholding will be at a payment rate equal to the amount of compensation payable at the end of the associated fiscal year. The withholding may be done over any period of time in which the compensation benefits support the withholding. 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). In this case, the Veteran was awarded VA disability compensation benefits effective January 20, 2011. See October 2011 rating decision. The record reflects that the Veteran was discharged from active duty on January 6, 2011. As such, a March 2017 rating decision corrected the effective date for the grant of VA disability compensation benefits to January 7, 2011 (the day after discharge from active duty). See 38 C.F.R. § 3.400. The Veteran’s May 2012 VA Form 21-895-1 reflects that he reported 42 training days for fiscal year 2011, and asserted that only 18 of the 42 training days occurred after the effective date of the grant of VA benefits on January 20, 2011. The form was signed by the Veteran and his unit commander or designee. The record reflects that the RO withheld the Veteran’s VA compensation benefits for 42 training days in 2011. See, e.g., October 2012 VA notification letter. The Veteran asserts that the AOJ improperly withheld his VA compensation benefits for all 42 training days in fiscal year 2011, rather than just the 18 training days that took place after the effective date of the grant of VA compensation benefits on January 20, 2011. Thus, he contends that he is entitled to reimbursement for the remaining 24 training days that occurred in 2011 prior to January 20, 2011. After a review of all the evidence, the Board finds that the AOJ properly withheld the Veteran’s VA compensation benefits for 42 days of fiscal year 2011. The Veteran’s Defense Finance and Accounting Service (DFAS) leave and earning statements (LES) for January 2011 show that he had a total of 42 paid drill training days for fiscal year 2011, which are based on two training periods per day on each of the following days: from January 7, 2011, to January 16, 2011, and from January 18, 2011, to January 28, 2011. The Veteran does not dispute that he had 42 drill training days in fiscal year 2011. On his May 2012 VA Form 21-895-1, the Veteran reported 42 training days for fiscal year 2011. It appears that the Veteran’s confusion in this case stems from the erroneous effective date initially assigned by the RO for the Veteran’s VA compensation benefits (January 20, 2011), which has since been corrected to January 7, 2011 (the day after discharge from active duty) pursuant to 38 C.F.R. § 3.400. See March 2017 rating decision. Based on the foregoing, the Board finds that the AOJ properly withheld the Veteran’s VA compensation benefits for 42 days in fiscal year 2011, during which he was in receipt of military drill pay. As the disposition of this issue is based on the law, and not the facts of the case, the appeal must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.