Citation Nr: 20036730 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 15-10 046 DATE: May 28, 2020 REMANDED Whether the withholding of service-connected compensation benefits to recoup for 72 drill pay days for fiscal year 2010 was proper, is remanded. REASONS FOR REMAND The Veteran served in the United States Air Force from December 1979 to March 1980; and has verified periods of active duty as a member of the Air National Guard from August 1990 to July 1991; from May 2002 to June 2002; July 2005 to June 2006; July 2006 to July 2007, July 2010 to November 2010, February 2011 to May 2011, August 2011 to September 2011, and October 2011 to November 2011. She retired from the Air National Guard in April 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 determination by the Department of Veterans Affairs Regional Office (RO), in Jackson, Mississippi. In November 2018, the Board remanded the appeal for further development. Specifically, the Board directed the RO to conduct an audit of the Veteran’s compensation account. 1. Whether the withholding of service-connected compensation benefits to recoup for 72 drill pay days for fiscal year 2010 was proper, is remanded. The Veteran has contested the overpayment and has sought a waiver based on financial hardship. As an initial matter, the evidence indicates that from 2008 to 2016, the Veteran received both VA compensation and National Guard pay, which has resulted in several overpayments and recoupment actions. With regards to the fiscal year 2010 overpayment, the Veteran’s Department of Veterans Affairs (VA) service-connected compensation benefits were withheld by VA to recoup 160 drill pay days for fiscal year 2010 for the period of July 1, 2013 to December 11, 2013. Fiscal year 2010 extends from October 1, 2009 to September 30, 2010. The number of military pay days was subsequently revised to 72 days. There is no evidence to explain this reduction. Rather, the evidence of record includes a DD214, Certificate of Discharge or Release from Active Duty, which indicates that the Veteran was on active duty from July 4, 2010 through November 14, 2010, which includes 89 days within fiscal year 2010 and a total of 134 days. There is no evidence of other National Guard service, such as monthly attendance at National Guard unit training assemblies for the remainder of fiscal year 2010, exclusive of the period of active duty. As discussed above, in November 2018, the Board directed the RO to conduct an audit of the Veteran’s compensation account. The audit demonstrates that the Veteran was paid at a rate of $866.00 per month for fiscal year 2010, and $910.00 per month for fiscal year 2013, when the recoupment action took place. The audit indicates that the Veteran’s compensation was reduced from $910.00 to $44.00 ($910.00 minus $866.00 per month) from July 1, 2013 to September 12, 2013 for “(72) Days FY 10,” at an adjusted rate of $105.60 per day. However, the audit also indicates that the Veteran’s compensation was reduced from $910.00 to $44.00 ($910.00 minus $866.00 per month) from August 1, 2013 to November 29, 2013. It is unclear if this compensation was withheld and applied to the fiscal year 2010 debt, which would be well in excess of 72 days, or if some of the compensation was applied to another debt. Based on the foregoing, the Board finds that a remand is necessary to clarify the basis of the overpayment, to include an explanation of the calculation of days of military pay, and to provide information on the amount of compensation that has been withheld and applied to the outstanding debt. The matters are REMANDED for the following action: 1. Obtain from DFAS verification of all pay and other benefits provided to the Veteran related to her service in the Air National Guard from October 1, 2009 to September 30, 2010. This information may be in the form of the Master Pay records and leave and earnings statements and should include specific dates of pay for all periods of active duty for training and inactive duty training. If DFAS is unable to provide verification of the Veteran’s drill dates and pay for the period at issue, all follow-up development required to obtain this information should be conducted, to include requesting the information from the appropriate service department. The RO should associate with the claims file all documents received pursuant to his development. 2. Thereafter, prepare an audit of the Veteran’s VA compensation account, setting forth the amounts owed and paid from her entitlement to VA compensation in fiscal year 2010. The Board notes that the Veteran had several overpayments for concurrent receipt of VA compensation and reserve pay, to include 2009, 2010 and 2011. The audit should clearly specify which reduction in VA compensation is being applied to which debt. The audit report must be associated with the claims folder, and a copy must be sent to the Veteran. The RO should also formally notify the Veteran of the amount of overpayment of VA compensation. He should be advised his right to request a waiver of the recovery of such overpayment. 3. Thereafter, the RO should readjudicate the matter of whether the amount of VA compensation benefits withheld for the purpose of recouping military drill pay for the fiscal year period was correct. If the Veteran's challenge to the amount of the overpayment remains denied, the RO should provide her with a supplemental statement of the case that accurately reflects the reasons for its decision and contains a recitation of the applicable laws and regulations. The Veteran should be given the requisite opportunity to respond to the SSOC before the case is returned to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.