Citation Nr: 19159201 Decision Date: 07/31/19 Archive Date: 07/31/19 DOCKET NO. 18-38 540A DATE: July 31, 2019 REMANDED The reduction in Department of Veterans Affairs (VA) disability compensation for the purpose of recouping military drill pay for days served during Fiscal Year 2016 is remanded. REASONS FOR REMAND The Veteran, who is the appellant, served on active duty in the U.S. Marine Corps from April 2008 to April 2014. The Veteran seeks a recalculation of the reduction in Department of Veterans Affairs (VA) disability compensation for the purpose of recouping military drill pay for days served during Fiscal Year 2016. Particularly, the Veteran asserts that there were two errors made by the Regional Office (RO) in their calculation of the appropriate reduction in VA disability compensation: First, the Veteran has filed documentation that he served less days than the RO had accounted for in their calculations; and second, that the RO erroneously based their calculations on a 60 percent rating, rather than a 30 percent rating. 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 125 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. 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 $4,412.88. In August 2018, the Veteran submitted a “Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances,” which stated that he had received training pay for 115 days during fiscal year 2016 and was signed by the Veteran’s unit commander or designee. Additionally, the Veteran submitted military orders which indicated that 59 of the 115 days occurred prior to September 1, 2016. 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). As the Veteran has submitted a completed “Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances,” the amount that should be recouped from the Veteran for concurrent payment of VA disability benefits and training pay should be reduced by 10 days. With regards to the Veteran’s claim that the RO erroneously based their calculations on a 60 percent rating, the VA Form 21-8951, “Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances” which was sent to the Veteran in May 2017 stated: “If you waive VA benefits to receive training pay, VA will make a retroactive adjustment, which may create an overpayment in your account, for the same total number of days waived and at the monthly rate in effect for the fiscal year for which you received training pay.” While the VA generally withholds benefits at the same rate the VA was paying the Veteran on the last day of the fiscal year in which the Veteran received drill pay, if the actual dates on which the Veteran attends drills or training are known, then the VA will withhold benefits at the same rate VA was paying the Veteran on those dates. See for example, VBA Manual M21-1, III.v.4.C.5.a. Accordingly, although further delay is regrettable, the Board finds that additional development is required prior to adjudication of the issue on appeal. The RO should (1) provide the Veteran the opportunity to submit any further documentation necessary to determine the exact dates that he attended drills or training during Fiscal Year 2016; (2) review all documentation submitted by the Veteran which may contain information as to the actual dates on which the Veteran attended drills or training during Fiscal Year 2016; and (3) recalculate the amount of benefits that should be withheld based on the entirety of the record. The matter is REMANDED for the following action: 1. Provide the Veteran with instructions as to the type of evidence that is acceptable to prove the exact dates that he attended drills or trainings during Fiscal Year 2016. Allow the Veteran an appropriate time to respond. 2. After completing the above, and any other development deemed necessary, readjudicate the appeal. Provide an additional supplemental statement of the case to the Veteran explaining how the amount to be withheld was calculated and what evidence was considered when determining the amount owed due to concurrent payments; the supplemental statement of the case should specifically identify what disability rating percentages where utilized for each known period of time and why that percentage was used. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Capes, Attorney Advisor