Citation Nr: 21067568 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-27 922 DATE: November 4, 2021 REMANDED Propriety of the reduction in Department of Veterans Affairs (VA) disability compensation for the recouping of 6 days of military drill pay for Fiscal Year (FY) 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2008 to February 2012. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a July 2016 rating decision by a VA Regional Office, which is the Agency of Original Jurisdiction (AOJ). In his May 2017 Form 9 Substantive Appeal, the Veteran requested a hearing before a Veterans Law Judge. He was scheduled for a hearing on March 13, 2020, and notified at his latest address of record in January 2020; however, he did not appear at the hearing. The request is deemed withdrawn. 38 C.F.R. § 20.704(d). Propriety of the reduction in VA disability compensation for the recouping of 6 days of military drill pay for FY 2014. The Veteran that the reduction in VA disability compensation in order to recoup 6 days of drill pay in FY 2014 was improper. In this regard, he reported that he did not participate, nor was paid, for any drill days in FY 2014. Instead, he reported he did participate in 6 drill days, and only 6 drill days in total, but they all occurred in FY 2013, and those 6 drill days paid were already recouped. Upon a review of the record, a remand is necessary to ensure the record is complete and obtain correct accounting. 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. Reservists may waive their pension, compensation, or retirement pay for periods of field training, instruction, other duty, or drills; such 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 February 2014 letter, the AOJ notified the Veteran that based on information received from the Defense Manpower Data Center (DMDC), he was reported to have completed 1 drill day in FY 2013. The letter informed the Veteran that he could elect to waive VA disability compensation in lieu of active service pay, and afforded him an opportunity to dispute the number of drill days completed. Then, in a November 2014 letter, the AOJ notified him of a proposal to retroactively adjust his compensation benefits for 1 day of drill pay in FY 2013. However, the Veteran returned the completed notification letter in January 2015, informing VA that he actually participated in 6 drill days in FY 2013, and his unit commander signed the letter. Thereafter, in a February 2015 letter, the AOJ notified the Veteran that based on information received from the DMDC, he was reported to have completed 6 drill days in FY 2014. The letter likewise informed the Veteran that he could elect to waive VA disability compensation in lieu of active service pay, and afforded him an opportunity to dispute the number of drill days completed. The Veteran was called by the AOJ in April 2015, at which time he stated he was confused by the forms, but that he would like to waive VA benefits, and he completed 6 drill days and not 1. The phone call memorialization did not identify which FY the call was in regard to, but the next day in April 2015, the AOJ withheld the Veteran's disability compensation to recoup for 6 drill days in FY 2013. In March 2016, the AOJ sent another letter to the Veteran, notifying him of a proposal to retroactively adjust his compensation benefits for 6 days of drill pay in FY 2014. Then, in July 2016, the AOJ noted the Veteran had not returned the February 2015 letter regarding the drill days in FY 2014, and it withheld his benefits to recoup 6 drill days paid in FY 2014. The Veteran then initiated the current appeal process. The Veteran's statements and arguments of record acknowledge that he participated in a total of 6 drill days, but he contends these occurred entirely in FY 2013. Notably, he adjusted the proposed withholding from 1 day to 6 for FY 2013 to correct this perceived error. He then argued that the withholding for FY 2014 was in error, as VA had already withheld his compensation to recoup the 6 days he drilled, which was the sum total. The information received from the DMDC is not of record. This information formed the basis of the AOJ's decision and should have been associated with the record in order to provide the Veteran with the complete information needed to pursue his claim, as well as for the Board to analyze the merits of the appeal properly. Notably, as he reported in the phone call memorialized in April 2015, the withholding and forms for FY 2013 and FY 2014 were being processed concurrently, and he was confused by the forms. The information from the DMDC would inevitably assist the Veteran in pursuing his appeal. Likewise, there is no information of record from a different source which confirms the Veteran's participation in the drill days noted, such as personnel records, a service record, or a Military Master Pay Account (MMPA). Thus, these service records should also be obtained on remand if possible. Further, implicit in any analysis of the validity or creation of the debt is an accurate accounting. As above, the Veteran's claims file currently does not contain any reviewable accounting or documentation of exactly how the Veteran's alleged overpayment was actually calculated, beyond that a $305.11 debt was created, and his disability compensation would be withheld from October 1, 2015 to October 7, 2015. Consequently, the AOJ should confirm the Veteran's dates of drill training and to verify his drill pay as well as other VA compensation benefits provided during FY 2013 and FY 2014, and so inform the Veteran when readjudicating the matter of the validity of any debt created by receipt of drill pay. In this regard, while the withholding for FY 2013 is not currently on appeal, the Veteran contends he participated in 6 drill days only in FY 2013 and FY 2014. Thus, the AOJ should ensure that there is not a duplicate withholding pertaining to FY 2014 for drill days completed in FY 2013, and vice versa. The matters are REMANDED for the following action: 1. Obtain verification of the Veteran's FY 2013 and FY 2014 drill days and drill pay from appropriate sources, to include the DMDC, the personnel officer in the Veteran's unit, obtaining information from the Veteran's MMPA, and/or obtaining verification of all drill pay for FY 2013 and FY 2014 from the Defense Finance and Accounting Service, as necessary. All responses should be clearly documented in the electronic claims file. 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.