Citation Nr: 21069250 Decision Date: 11/18/21 Archive Date: 11/17/21 DOCKET NO. 19-36 018 DATE: November 18, 2021 ORDER The reduction in the amount of $41,756.10, in Department of Veterans Affairs (VA) disability compensation due to concurrent receipt of military active service pay from September 1, 2014 to July 31, 2016, is proper; the appeal is denied. FINDING OF FACT The Veteran received concurrent VA disability compensation and military active service pay from September 1, 2014 to July 31, 2016. CONCLUSION OF LAW The reduction in the amount of $41,756.10, in VA disability compensation due to concurrent receipt of military active service pay from September 1, 2014 to July 31, 2016 was proper. 38 U.S.C. §§ 5107, 5304(c); 38 C.F.R. §§ 3.654, 3.700. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to September 1985 and from September 2007 to July 31, 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 notification letter issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board remanded this matter for further development, which has since been completed. Whether the debt in the amount of $41,756.10 from concurrent receipt of Department of Veterans Affairs (VA) disability compensation and military active service pay from September 1, 2014 to July 31, 2016, was properly created. The Veteran challenges the validity of an overpayment created when she received VA compensation benefits concurrently with active service pay from September 1, 2014 until July 31, 2016, when she was release from active service. Specifically, the Veteran averred that based on the information the RO provided, the debt should be $1,743.48 less, or that she was paid $40,012.62, and not $41,756.10. See November 2019 email correspondence. After review, the Board finds that the debt created was valid, as the Veteran was receiving VA disability compensation while receiving active service pay concurrently, from the September 1, 2014 to July 31, 2016. An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. 38 U.S.C. § 5302; 38 C.F.R. § 1.962. As relevant to this appeal, 38U.S.C. §5304 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 and inactive duty 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). To establish improper creation of an overpayment, or an invalid debt, the evidence must show that the claimant was legally entitled to the VA compensation benefits at issue, or, if he or she was not legally entitled to these benefits, then it must be shown that VA was solely at fault for the erroneous payment of excess benefits. See Jordan v. Brown, 10 Vet. App. 171, 174-75 (1997). An administrative error resulting in an overpayment will not be classified as a VA administrative error or error in judgment if the error is "based on an act of commission or omission by the beneficiary, or with the beneficiary's knowledge." Dent v. McDonald, 27 Vet. App. 362, 380 (citing 38U.S.C. §5112(b)(9); see 38C.F.R. §3.500(b)(1); VAOPGCPREC 2-90 (March 20, 1990)). Sole administrative error connotes that the claimant neither had knowledge of nor should have been aware of the erroneous award. Further, neither the claimant's actions nor his or her failure to act must have contributed to payment pursuant to the erroneous award. 38 U.S.C. §5112(b)(9),(10); 38 C.F.R. §3.500(b)(2); Jordan v. Brown, 10 Vet. App. at 174-75 (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). Thus, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary is unaware that the payments are erroneous. By way of background, the Veteran's claim for service connection for multiple disabilities was awarded in a September 2014 rating decision, effective August 1, 2014. In the notification letter that enclosed the rating decision, the Veteran was informed that her compensation benefits may be affected, in part, by reentrance into active service. Thereafter, in a late September 2014 telephone call, the Veteran informed VA that she was on active duty until July 31, 2016, and requested her VA compensation benefits to stop until that time. In support of her telephone conversation, she faxed a copy of her active duty orders. In November 2014, VA received her VA Form 21-8951-2, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, which indicated that she would be on active duty from September 1, 2014 to July 31, 2016. In December 2014, the Veteran submitted a letter with a note at the top where she wrote to call VA to 'stop payment' and 'pull $ out of acct.' She also noted receipt of September and October payments in the amount of $1,714.34 for each month. In an accompanying letter, the Veteran stated that this was her 'third request to stop VA Benefits and Disability Payment' and requested VA 'withdraw the monthly payments' from her account. Once more in July 2015, the Veteran submitted a statement requested her VA compensation benefits be suspended on account of her active duty service. She also again requested that VA withdrawal the '10 payments' from her account. In October 2016, VA noted that the Veteran properly notified continued active duty service and that her original award should not have promulgated. Later that same month, VA sent the Veteran a notification letter that informed her that action has been taken to terminate her VA compensation benefits from September 1, 2014, which would reinstate on September 1, 2016. This action resulted in an overpayment. Thirteen days later, the Debt Management Center assessed a debt of $41,756.10. In her November 2016 notice of disagreement, the Veteran stated that the debt amount was incorrect. She stated that her retirement was August 1, 2016; therefore, VA payments from August to November 2016 were correct. She stated that she actually owed $38,269.14 and not $41,756.10. In support of her claim, the Veteran submitted a copy of her payments received. The paperwork showed payments of $1,714.34 from October 1, 2014 through December 1, 2014, and $1,743.48 from December 31, 2014 through November 1, 2016. The Veteran calculated three payments of $1,714.34 and 19 payments of $1,743.48 that totaled $38,269.14. In a September 2019 letter and on the October 2019 statement of the case, the RO informed the Veteran that her benefits restarted on August 1, 2016, the first day after her release from active service. She was told that August's payment was paid in September 2016. The RO stated that all withholding periods were correct, reinstatement date was correct, and payment was correct. The Veteran submitted a copy of her email exchange with an RO staff member in November 2019. She also submitted a VA payment history, a sequence of events, and a December 2016 document from the DMC indicated that she repaid most of her debt, but that she disputes that she 'paid $1,743.48 too much.' Pursuant to the Board's remand, in August 2020, the Veteran was provided an audit for the period of September 1, 2014 to the present, including the period at issue. The relevant portions showed that: 1. From September 1, 2014 to November 30, 2014, the Veteran received $5,143.02 ($1,714.34 x 3 months); and 2. From December 1, 2014 to August 31, 2016, the Veteran received $36,613.08 ($1,743.48 x 21 months) This totaled $41,756.10. The RO provided 30 days to respond with additional information or evidence, but a response was not received. Based on the evidence of record, the Board finds that the creation of the debt is valid. As noted earlier, the law prohibits the receipt of VA disability compensation benefits for any period for which a Veteran receives active service pay. See 38 C.F.R. §§ 3.654, 3.700. From September 1, 2014 until July 31, 2016, the Veteran received active duty pay concurrently with VA disability compensation. Although the Board acknowledges that VA did contribute to this error, the overpayment was not solely due to VA administrative error. Sole administrative error entails no knowledge or fault on the part of the debtor. See Jordan, 10 Vet. App. at 175. In this case, she submitted forms and statements multiple times, attempting to get VA to stop her VA compensation payments since VA did not act. Therefore, she demonstrated knowledge that she was not legally entitled to receive compensation benefits concurrently with military active duty pay. However, during those times, she only requested VA to 'withdraw the payments' received, and not attempt to return the payments. As such, the Board finds that the Veteran's debt was not solely due to VA administrative error. Accordingly, the reduction in the VA disability compensation benefits to offset the concurrent receipt of military active service pay was proper. The law 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. The Veteran received both VA disability compensation and active service pay to which she was not entitled under the laws and regulations prohibiting concurrent receipt of those benefits. The appeal is therefore, denied. 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.