Citation Nr: 21061827 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-46 198 DATE: October 5, 2021 REMANDED The issue regarding whether the decision to withhold Department of Veterans Affairs (VA) compensation benefits in order to recoup 17 days of drill pay in Fiscal Year (FY) 2015 was proper, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2000 to July 2013. He had additional service in the Air Force Reserve. This matter is on appeal from a February 2017 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue regarding whether the decision to withhold VA compensation benefits in order to recoup 17 days of drill pay in FY 2015 was proper is remanded. The Veteran contends the reduction in VA disability compensation to recoup payment for 17 days of drill pay during FY 2015 (October 1, 2014 through September 30, 2015) is in error. Generally, pension, compensation, or retirement pay on account of any person's own service shall not be paid to such person for any period for which such person receives active service pay. See 38 U.S.C. § 5304(c); 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. Specifically, he argues that in December 2014, he took an emergency-essential position, and as a result, was no longer on active drill status with the Air Force Reserve. Thus, he did not participate in drill training during FY 2015. He indicated his proof of not receiving drill pay was a lack of Leave and Earning Statements (LES). See August 2017 VA Form 9. This matter was previously remanded by the Board in June 2019. Unfortunately, the Board finds another remand is necessary to ensure compliance with previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this matter to obtain pay records from the Defense Finance and Accounting Service (DFAS), the Defense Joint Military Pay System Reserve Component (DJMS RC), or any other appropriate agency. Pertinent to the instant appeal, the Board asked for the LES for FY 2015 and requested the RO to document any negative results in the claims file. The RO was also asked to prepare an audit of the Veteran's VA compensation account during FY 2015. Following the remand, the RO requested the Veteran's military personnel and pay records from Defense Personnel Records Information Retrieval System (DPRIS), instead. On review, the DPRIS records did not contain military pay information and the service records from Air Force Reserve did not shed further light on his emergency-essential position. However, the RO did not document whether a request was made to DFAS and the file does not reflect an inquiry to this entity. As the FY 2015 LES are particularly important to the appeal, another remand is necessary to obtain LES records from DFAS. In a letter sent December 16, 2019, the Veteran was informed that VA did not have access to the DJMS RC system and requested him to fill out a VA Form 21-8951 with the unit commander's signature for the time he was serving in the emergency-essential position. He did not provide a response. The Board observes that some recent mail sent to the Veteran has returned to VA undeliverable. The RO should ensure correspondence is sent to the Veteran's current address, including the correspondence dated December 16, 2019 and the audit information contained in the May 15, 2020 correspondence. Lastly, while some development was obtained as a result of the Board's remand, the RO did not issue a supplemental statement of the case (SSOC) before returning the appeal to the Board. The matter is REMANDED for the following actions: 1. Contact the Veteran and his representative to confirm his mailing address. 2. Invite the Veteran to submit a completed VA Form 21-8951 with his and his unit commander's signature for the time he was serving in the emergency-essential position. 3. Obtain from DFAS or any other appropriate government document repository verification of all pay and other benefits provided to the Veteran related to his training, if any, during FY 2015 (October 1, 2014 through September 30, 2015). If any requested records are not available from DFAS, or the search otherwise yields negative results, that fact must clearly be documented in the claims file. (Continued on the next page) 4. After verifying his mailing address, resend the December 16, 2019 correspondence letter requesting a completed VA Form 21-8951 and the May 15, 2020 correspondence containing the result of an audit of the Veteran's VA compensation account during FY 2015 with consideration of the Veteran's training days. 5. If the benefit sought remains denied following the development above, issue an SSOC and return the case to the Board after providing the Veteran and his representative an appropriate time for response. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.