Citation Nr: 20056579
Decision Date: 08/26/20	Archive Date: 08/26/20

DOCKET NO. 16-61 810
DATE: August 26, 2020

REMANDED

The matter of whether the reduction in Department of Veterans Affairs (VA) disability compensation due to concurrent receipt of active service drill pay for Fiscal Year (FY) 2015 was proper is remanded.

REASONS FOR REMAND

In February 2020, the Board of Veterans’ Appeals (Board) remanded this case for the Regional Office (RO) set forth the Veteran’s drill dates during FY 15 and prepare a paid and due audit of the Veteran’s service-connected compensation benefits, indicating the drill pay and the reduction in benefits for those days.  However, an incomplete assessment was made.

In this case, the Defense Manpower Data Center (DMDC) informed VA that the Veteran received active service drill pay for a period of 64 days in FY 2015, from October 1, 2014 to September 30, 2015.  During that period of time, the Veteran’s combined evaluation was increased from 20 percent to 30 percent effective June 9, 2015.  The increase also established eligibility for additional compensation based upon having a spouse.  The Veteran’s VA disability compensation was then reduced for concurrent receipt of active service drill pay for a period of 64 days in FY 2015 and this action resulted in an overpayment.  The Veteran contends that while he did have 64 drill pay in 2015, VA recouped more monies than was warranted based on his VA compensation rate of payment and dependency allowance. 

Pursuant to 38 U.S.C. § 5304 (c), VA law prohibits the receipt of VA disability compensation benefits for any period for which the person receives active service pay. See 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.  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).

On remand, the RO performed the audit.  The RO noted that the RO withholds VA benefits at the same rate VA was paying on the last day of the FY in which he received the drill pay.  In this case, the Veteran was entitled to $455.75 per month on the last day of FY15.  That amount was divided by 30 days, totaling $15.20 per day.  That amount was the multiplied by 64 (for 64 days) which totaled $972 which is the amount of the overpayment.

However, while VA generally withholds benefits at the same rate the VA was paying the Veteran on the last day of the FY in which the Veteran received drill pay, if the actual dates on which the Veteran attends drills or training are known, then VA will withhold benefits at the same rate VA was paying the Veteran on those dates.  See VBA Manual M21-1, III.v.4.C.5.a.  The RO performed the assessment without consideration of the actual drill date analysis.  Accordingly, the Board finds that additional development is required to consider that calculation. 

The matters are REMANDED for the following action:

Calculate the amount of the overpayment using the actual dates on which the Veteran attended drills or training and withholding benefits at the same rate VA was paying the Veteran on those dates, identifying what disability rating percentages were utilized based on the dates.

			[SIGNATURE ON NEXT PAGE]

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Department of Veterans Affairs

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.