Citation Nr: 21061304 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-44 022 DATE: October 1, 2021 ORDER The decision by the Department of Veterans Affairs (VA) to withhold compensation for 220 days of drill pay for Fiscal Year (FY) 2009 was proper, and the appeal is denied. FINDING OF FACT The Defense Manpower Data Center (DMDC) advised VA that the Veteran received active service drill pay for a period of 55 days in FY 2004; 48 days in FY 2005; 26 days in FY 2007; and 59 days in FY 2008. CONCLUSION OF LAW The decision by the Department of Veterans Affairs (VA) to withhold compensation for 220 days of drill pay for Fiscal Year (FY) 2009 was proper, and the appeal is denied. 38 U.S.C. §§ 5107, 5304(c); 38 C.F.R. §§ 3.654, 3.700. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 2001 to March 2005 and from November 2007 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a May 2021 hearing before the Board of Veterans' Appeals (Board). 1. Whether the decision by VA to withhold compensation for 220 days of drill pay for FY 2009 was proper The Veteran has disputed the propriety of the decision by the VA to withhold compensation for 220 of drill pay during FY 2009. The Defense Manpower Data Center (DMDC) advised VA that the Veteran received training pay for a period of 220 days in FY 2009 and 43 days in FY 2010. See April 2011 and July 2011 VA Form 21-8951 Notices of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances. The Board notes that the information provided in the July 2011 VA Form 21-8951 concerning FY 2009 is handwritten, and was confirmed by the RO in a June 2017 Statement of the Case. As relevant to this appeal, 38 U.S.C. § 5304(c) 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). In a July 2011 VA notification letter, VA notified the Veteran of its proposed decision to withhold compensation based on the information provided by DMDC. In a July 2011 statement in support of his claim, the Veteran stated that he disagreed with VA's decision, and his compensation should not be reduced. After a December 2013 notification letter informing the Veteran that the decision to reduce his compensation had been finalized, he submitted a Notice of Disagreement (NOD) in December 2013. In an April 2017 subsequent development letter, VA notified the Veteran that while it had received his VA Form 21-8951 Notice of Waiver of VA Compensation or Pension to Received Military Pay and Allowances for fiscal year 2009, he needed to submit the form completed and signed by your unit commander. In a June 2017 Report of General Information, a VA employee stated that they had contacted the Veteran regarding his drill pay appeal. The Veteran confirmed that he had received the April 2017 letter requesting his commander confirm his training days for FY 2009. However, the Veteran did not have the information needed to contact his unit or former commander. In a September 2017 representative's statement, the Veteran's representative asserted that they had reviewed the record and found nothing to confirm the number of training days for FY 2009 other than the July 2011 VA Form 21-8951. During the Veteran's July 2021 Board hearing, he testified that he believed VA had erroneously withheld compensation from him, and he had worked less than 220 training days during FY 2009. However, the Veteran was unable to provide specific dates or amounts of money that he believed to be correct. The Board emphasizes that the duty to assist and provide the Veteran with a correct accounting of his training days is a two-way street, and the Veteran had not provided the information requested concerning his FY 2009 training days, including a VA Form 21-8951 completed by his former commander. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Based on a review of the record, the Board finds that the RO appropriately withheld the Veteran's VA compensation benefits for the period in question for FY 2009, during which periods he was in receipt of military drill pay. Accordingly, the reduction in the VA disability compensation benefits to offset the concurrent receipt of active service drill pay for concurrent receipt of active service drill pay for a period of 220 days in FY 2009 was proper. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, Associate 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.