Citation Nr: A20012464 Decision Date: 07/29/20 Archive Date: 07/29/20 DOCKET NO. 200302-66259 DATE: July 29, 2020 ORDER The withholding of $2,146.21 due to concurrent receipt of military retired pay (MRP) and VA disability compensation for October and December 2017 was clearly and unmistakably erroneous; the appeal is granted. FINDING OF FACT 1. The Veteran retired from active service for length of service after serving a period of 24 years, 7 months, and 29 days. 2. As of September 21, 2017, the Veteran is in receipt of a 100 percent disability rating. CONCLUSION OF LAW The criteria for concurrent receipt of MRP and VA disability compensation have been met. 10 U.S.C. § 1414(a) (2019); 38 U.S.C. §§ 5304, 5305 (2019); 38 C.F.R. §§ 3.400(k), 3.700, 3.750 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1957 to March 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2019 Higher Level Review issued by a Department of Veterans Affairs (VA) Regional Office (RO). The original rating action reducing the Veteran’s disability compensation was issued in January 2018. The Veteran did not initiate an appeal or file additional evidence within one year of the notice of that decision. In September 2019, the Veteran requested a “Pay and Due” review of the withholding amount, alleging there was an error in the calculation. The AOJ accepted this as a claim for benefits; however, as such correspondence was outside the time-limit for an appeal, and was not submitted on the proper form for a supplemental claim, the Board construes his September 2019 correspondence as a motion alleging clear and unmistakable error (CUE) in the creation and calculation of the withholding. 38 C.F.R. §§ 3.105(a), 3.155. The propriety of withholding $2,146.21 from October and December 2017 disability payments, to include whether the sum was correct. The Veteran contends that he is entitled to retroactive payment because VA miscalculated the amount of disability compensation payment the Veteran received in October and December 2017 by withholding $1,062.73 from the October payment and $1,083.48 from the December payment. Notably, the Veteran did not specifically challenge the validity of the debt created; however, the Board finds his claim implicitly challenges the validity of the debt as he is presumed to be seeking the maximum benefit available. Thus, the Board construes the Veteran’s argument as alleging there was CUE in the January 2018 rating decision concerning the withholding of VA disability compensation. CUE is a very specific and rare kind of error. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). By way of background, the Veteran’s claim arises from a January 2018 rating decision, which, as relevant, granted a 100 percent rating for the service-connected hearing loss as of September 21, 2017. In January 2018, the RO notified the Veteran of the award, and as a result of his concurrent retired pay, it also notified the Veteran of a necessary withholding of $1,062.73 from October and $1,083.48 from December. In this regard, in January 2018, the RO included a Defense Finance and Accounting Service (DFAS) payment worksheet and calculated that the Veteran received $2,222.00 of retired pay in October and December 2017. The January 2018 rating decision increased the Veteran’s disability compensation to $3,181.65 and $3,245.28 for each month respectively. The Veteran had previously received payments of $1,159.27 and $1,182.52, respectively. In the absence of withholding, the Veteran would have been entitled to a retroactive payment of $4,085.14. Consequently, he was awarded a retroactive payment of $2,898.58, to account for the increased rating award minus the calculated withholding. Importantly, there is a general prohibition on the concurrent payment of military retirement pay and VA disability compensation pay without a waiver. See 38 U.S.C. § 5304; see also 38 U.S.C. § 5305; 38 C.F.R. § 3.750. Legislation, however, has been enacted to allow certain Veterans to receive some measure of concurrent payments for both their retired military pay and their VA disability compensations. Relevant here is the Concurrent Retirement and Disability Payment (CRDP) program. The CRDP is a program that is available to military retirees who served a minimum of 20 years creditable service, including service in the National Guard and Reserves. CRDP restores some or all of the military retired pay that was deducted due to receipt of VA service-connected disability compensation. Retirees must be rated 50 percent or more disabled by VA. Retirees are not required to apply for this benefit; enrollment is automatic. After December 31, 2004, such individuals are generally eligible for full payment of their military retired pay and VA disability compensation, with some limitations. See 10 U.S.C. § 1414. In this regard, the Veteran has been rated as 100 percent disabled for the pertinent period, he has over 20 years of creditable military service, and retired for length of service, not disability; thus, he meets the minimum requirements for CRDP. Furthermore, he was not subject to the requirements for filing a waiver in order to receive the maximum allowable benefits as his claim was filed after to the end of the CRDP phase-in period on December 31, 2013. 38 C.F.R. § 3.750. Therefore, as Veteran has met the requirements for CRDP for the period his disability compensation was withheld, and such withholding occurred after the conclusion of the phase-in period, the Board finds that he was entitled to received both MRP and VA disability compensation. Consequently, as the Veteran was legally entitled to such payments, the withholding of $1,062.73 from the October 2017 payment and $1,083.48 from the December 2017 payment was clearly and unmistakably erroneous, and his appeal is granted. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan M. Estes 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.