Citation Nr: 21067395 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-08 043 DATE: November 4, 2021 REMANDED Whether the decision to withhold VA compensation benefits to recoup 8 days of drill pay received in Fiscal Year (FY) 2009 was proper is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1998 to November 1998 and from June 1999 to February 2005 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a video-conference hearing in March 2018. A transcript of the hearing is of record. Most recently, the Board remanded the claim on appeal for additional development. Specifically, the Board instructed the RO to obtain the Veteran's leave and earning statements (LES) from October, November and December 2008 from the Defense Finance and Accounting Service (DFAS), the Defense Joint Military Pay System Reserve Component (DJMS RC) or any other appropriate government document repository. The RO attempted to obtain the LES and was provided unresponsive statements that were already of record. The claim on appeal has been returned to the Board for appellate disposition. 1. Whether the decision to withhold VA compensation benefits to recoup 8 days of drill pay received in Fiscal Year (FY) 2009 was proper is remanded. The Veteran asserts that the reduction in VA disability compensation to recoup 8 days of drill pay in FY 2009 is in error. Specifically, he asserts that he did not receive payment for drill days performed in FY 2009. Unfortunately, the Board finds another remand is necessary to ensure compliance with previous remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The law prohibits the receipt of VA disability compensation benefits for any period for which a person receives active service pay. 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. 38 U.S.C. § 5304 (c) (2012); 38 C.F.R. §§ 3.654, 3.700. Reservists or members of the National Guard may waive their VA disability compensation 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). Here, the record reflects that the Veteran performed 8 days of Inactive Duty Training during FY 2009 (he participated in 4 assemblies in October 2008 and 4 assemblies in November 2008). He contends that he was not paid for those Inactive Duty Training days. In June 2018, the Board remanded the appeal and instructed the RO to obtain pay records for, in pertinent part, FY 2009 from DFAS, DJMS RC, or any other appropriate agency. The RO obtained monthly LES from January 2009 through September 2009 and a Master Military Pay Account (MMPA) that reflects the Veteran had been paid wages of $1,172.34 year to date (YTD) as of December 2008. The MMPA also reflects that the Veteran had performed training days in July 2008 (FY 2008), October 2008 (FY 2009) and November 2008 (FY 2009). However, the individual, monthly LES for October 2008, November 2008 and December 2008 were not included in the records. In February 2021, the Board remanded the appeal again and instructed the RO to obtain the Veteran's LES from October, November, and December 2008 from DFAS, DJMS RC or any other appropriate government document repository. The RO obtained the MMPA that reflected the Veteran had been paid wages of $1,172.34 YTD as of December 2008 and had performed training days in July 2008 (FY 2008), October 2008 (FY 2009) and November 2008 (FY 2009). The Board reiterates the MMPA had previously been obtained in response to the June 2018 remand instructions. However, still absent from the record are the individual, monthly LES from October 2008, November 2008, and December 2008. Because the individual, monthly LES from October 2008, November 2008, and December 2008 are of paramount importance to adjudication of this appeal, the Board again finds that another remand is necessary to attempt to obtain the individual, monthly LES from October 2008, November 2008, and December 2008. The matters are REMANDED for the following action: The RO must attempt to obtain the Veteran's individual, monthly LES from October 2008, November 2008, and December 2008, respectively, from DFAS, DJMS RC, or any other appropriate government document repository. If the Veteran's individual, monthly LES from October 2008, November 2008, and December 2008, respectively, are unavailable, or the search for the Veteran's individual, monthly LES from October 2008, November 2008, and December 2008, respectively, otherwise yields negative results, the RO must clearly document that fact in the claims file. All efforts to obtain the individual, monthly LES from October 2008, November 2008, and December 2008 must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of the individual, monthly LES from October 2008, November 2008, and December 2008, respectively, must be verified and clearly documented for the record. Required notice must be provided to the Veteran and his representative. K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson 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.