Citation Nr: 19162575 Decision Date: 08/13/19 Archive Date: 08/13/19 DOCKET NO. 19-00 892 DATE: August 13, 2019 ORDER The recoupment of disability severance pay for service-connected disabilities being proper, the appeal is denied.   FINDING OF FACT The service department found that the Veteran’s service-connected disabilities were not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense. CONCLUSION OF LAW The recoupment of disability severance pay for service connected disabilities was proper. 10 U.S.C. §§ 1174, 1212; 38 C.F.R. § 3.700. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2004 to June 2012. The case is on appeal from a March 2018 decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Recoupment Whether recoupment of disability severance pay for service-connected disabilities was proper. The Veteran in this case was awarded the amount of $42,595.20 in disability severance pay upon his separation from service. In a December 2017 rating decision, the RO awarded service connection for several disabilities incurred during service. In the March 2018 notice letter for the decision, the RO informed the Veteran that it would recoup the entire amount of severance pay before beginning to pay the service-connected disability compensation. The Veteran disputed the RO’s action and this appeal followed. The Veteran maintains, as argued in his December 2018 VA Form 9, that the recoupment was improper because his service-connected disabilities were incurred in a combat zone during the performance of duty. A. Applicable Law As applicable, not more than one award of compensation will be made concurrently to any person based on his or her own service. 38 C.F.R. § 3.700. Where the disability or disabilities found to be service-connected are the same as those upon which disability severance pay is granted, or where entitlement to disability compensation was established on or after September 15, 1981, an award of compensation will be made subject to recoupment of the disability severance pay. 38 C.F.R. § 3.700(a)(3). A member who has received separation pay, severance pay, or readjustment pay under any other provision of law, based on service in the armed forces shall not be deprived, by reason of his receipt of such separation pay, severance pay, or readjustment pay, of any disability compensation to which he is entitled under the laws administered by VA, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay, severance pay, and readjustment pay received. 10 U.S.C. § 1174(b). However, no deduction may be in the case of disability severance pay received by a member for a disability incurred in line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense. 10 U.S.C. § 1212(d); 38 C.F.R. § 3.700(a)(3). B. Discussion The Veteran was separated from service in June 2012 due to disability. His DD Form 214 gives the narrative reason for separation as: “disability, severance pay, non combat.” He underwent a Physical Evaluation Board (PEB) proceeding in February 2012, which had made the recommendation for separation. The PEB’s findings and recommendation report contains a column to designate whether the unfitting conditions were combat related as defined in 26 38 U.S.C. § 104. It states “No.” It separately states “no” where asked if the “disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA 2008, Secondary 1646).” The Veteran signed a statement indicating that he agreed with the findings and recommendation of the PEB. Based on these facts, the recoupment of the disability severance pay was proper. The service department specifically, affirmatively, and in numerous instances identified the Veteran’s disabilities as not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense. The service department’s designation of whether a disability was incurred in a combat zone or incurred during performance of duty in combat-related operations governs whether a deduction may be made from VA compensation paid for the disability for which disability severance pay was received. 74 Fed. Reg. 26956, 26957 (Jun 5, 2009). Accordingly, the designation made here by the service department in this case is binding on VA. See 10 U.S.C. § 1212(d); 38 C.F.R. § 3.700(a)(3). In sum, the preponderance of the evidence is against a showing that the severance pay meets a combat exception to recoupment. Thus, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the recoupment was proper and not recouping the severance pay is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.