Citation Nr: 21061961 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-03 569 DATE: October 5, 2021 REMANDED The matter of whether the reduction in Department of Veterans Affairs (VA) disability compensation due to concurrent receipt of military service drill pay for Fiscal Years (FYs) 2008, 2011, 2012, 2014, and 2015 was proper is remanded. REASONS FOR REMAND 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 drill day payments. See 38 C.F.R. §§ 3.654, 3.700. 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 October 2009, the Agency of Original Jurisdiction (AOJ) sent the Veteran a letter indicating that although he had been sent a VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, he had not replied so the AOJ proposed to adjust his compensation payments. A January 2010 letter from the AOJ informed the Veteran that the proposed action had been taken to account for drill pay for 65 days in FY 2008. In a September 2014 letter, the AOJ stated that the Veteran was sent three VA Forms 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, but did not receive a response. Therefore, the AOJ planned to reduce his compensation payments. It was noted that the Veteran had 60 drill pay days for FY 2011, 63 drill pay days for FY 2012, and 63 drill pay days for FY 2013. In a September 2015 letter, the AOJ stated that information had been received from the Defense Manpower Data Center that the Veteran received 44 days of drill pay during fiscal year FY 2014. Thus, the reduction would be made from the compensation payments for that number of days by the amount of compensation the Veteran was receiving during FY 2014. The retroactive adjustment would be effective January 1, 2014. In a June 2016 letter, the AOJ indicated that it planned to retroactively adjust the Veteran's compensation benefits from October 1, 2015, based on 42 drill days completed for FY 2015. A September 2016 letter indicated that this action had been taken. Another June 2016 letter indicated that information from the Defense Manpower Data Center showed that the Veteran received 60 days of drill pay during FY 2008, so his benefits would be reduced accordingly as concurrent receipt of VA benefits and military pay is prohibited by law. A September 2016 letter from the AOJ, in pertinent part, indicated that previously proposed actions had been undertaken to reduce the Veteran benefits due to drill pay in FYs 2008 and 2014. An October 2016 letter specified the dates and amounts of the adjustments for drill pay in FYs 2011 (60 days), 2012 (63 days), 2013 (63 days), 2014 (44 days), and 2015 (42 days). A December 2016 internal VA correspondence verified that the Veteran was not charged twice for his drill pay in FYs 2011-2012. A December 2016 audit was conducted which showed the Veteran what he was paid versus what he was due, but this audit indicated that the overpayment was from March 1, 2005 through November 1, 2016, so the audit covered a longer period than is addressed in the current appeal and the total does not coordinate with the total overpayment on appeal. The Veteran believes that he was overcharged and there are several years for which he essentially paid twice. Per the April 2020 Board Remand, it was indicated that there was confusion over prospective versus retroactive adjustments made to the Veteran's award. In addition, the December 2017 statement of the case noted the following: VA found that the proposed reduction to your VA compensation benefits for 60 drill pay days in fiscal year 2008 was not done as was indicated in the September 6, 2016 notification letter. When that action is completed, an additional overpayment will be created. However, a January 2010 letter had indicated that an adjustment had been made for 65 days (not 60) during FY 2008 already. The April 2020 Board Remand instructed that a paid and due audit for the FY years 2008, 2011-2015 should be conducted which shows what actions were taken and how the total of the overpayment of $8,880.41was derived, as opposed to the earlier audit which cited a total of $10,167.91. Since FYs prior to 2008 and from 2009-2010 are not part of the appeal, they should not be included in the audit. Per the November 2020 Board Remand, the matter was again remanded as a December 2020 audit was performed which was not exclusive to the periods indicated and it not clearly indicated if the overpayment for FY 2008 was previously collected as indicated in the January 22, 2020 letter for 65 drill days. In June 2021, an audit was conducted which reflects 'Amount of Benefits PAID' for the period from March 1, 2005 to June 30, 2021; retroactive payments from February 1, 2006 through March 4, 2021; attorney fees; and, 'Amount of Benefits DUE' for the period from March 1, 2005 to June 30, 2021. Per the audit, the Veteran's VA compensation account is balanced and there are no monies owed to the Veteran. Again, the Board requested that the audit only include the FY years 2008 and 2011-2015, excluding FY's prior to 2008 and from 2009-2010, as such periods are not included in the appeal. Also, such audit and the July 2021 supplemental statement of the case does not address whether the overpayment for FY 2008 was previously collected as indicated in the January 22, 2010 letter for 65 drill days. Remand is necessary for further clarification. The matter is REMANDED for the following action: Perform a paid and due audit for the FY years 2008, 2011-2015 excluding FYs prior to 2008 and from 2009-2010. It should be clearly indicated if the overpayment for FY 2008 was previously collected as indicated in the January 22, 2010 letter for 65 drill days. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.