Citation Nr: 21069403 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-33 271 DATE: November 18, 2021 ORDER The creation of overpayment debt of VA disability compensation in the amount of $2,586.91 based on the receipt of military drill pay for Fiscal Year (FY) 2016 was proper; the appeal is denied. FINDINGS OF FACT 1. The Veteran was in receipt of VA disability compensation benefits when he received drill pay for 51 drill days for FY 2016. 2. The Veteran's VA disability compensation was properly reduced for concurrent receipt of military service drill pay for a period of 51 days for FY 2016. CONCLUSION OF LAW An overpayment debt of disability compensation in the amount of $2,586.91 based on the receipt of military drill pay for FY 2016 was validly created. 38 U.S.C. §§ 5107, 5304(c); 38 C.F.R. §§ 3.654, 3.700. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 2003 to May 2004, from May 2007 to October 2007, and from October 2007 to November 2008. In July 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. The appeal has been returned to the Board for further consideration. Validity of Debt 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. When the validity of a debt is challenged, a threshold determination must be made on that question prior to a decision on waiver of indebtedness. Schaper v. Derwinski, 1 Vet. App. 430, 431 (1991); see also 38 C.F.R. § 1.911 (c); VAOPGCPREC 6-98 (Apr. 24, 1998). To establish improper creation of an overpayment, i.e. an invalid debt, evidence must show that the claimant was legally entitled to the VA compensation benefits at issue, or, if he 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. 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 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). 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, 27 Vet. App. at 380 (citing 38 U.S.C. § 5112 (b)(9); see 38 C.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. 171 (1997) (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. The Veteran had military drill pay for a period of 51 days in FY 2016. In May 2017, VA notified the Veteran that it proposed to reduce his compensation payments and provided VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances showing that the Veteran had 51 drill days during FY 2016. In June 2017, the Veteran signed and returned Form 21-8951. The Veteran stated that he had 31 training days in FY 2016 and elected to waive VA benefits for the days indicated in order to retain training pay. The Veteran stated that he did not attend training in January 2017. The form was not signed by a unit commander or other designee. In August 2017, VA notified the Veteran that it reduced his compensation payments due to concurrent receipt of military training pay and VA compensation benefits for FY 2016. VA informed the Veteran that these adjustments resulted in a debt of $2,586.91. The Veteran disputes the validity of the debt created due to concurrent receipt of VA compensation and active duty military pay. As noted above, the Veteran asserts that he had 31 training days in FY 2016. The Veteran also asserts that he did not attend annual training of 21 days and was excused from three drills totaling 8 days, and therefore had only 22 days of drill pay in FY 2016. See September 2017 Notice of Disagreement. The Board finds the evidence of record supports a finding that the Veteran trained for 51 days during FY 2016. The Board acknowledges the Veteran's assertion that he had either 31 or 22 drill days in FY 2016. In light of the Veteran's assertions, the Board remanded the appeal in July 2020 to obtain additional documentation. The AOJ subsequently requested verification of the number of days the Veteran received drill pay and the amount of drill pay the Veteran received in FY 2016 from the Oklahoma National Guard in an October 2020 phone call, and in November 2020, January 2021, and February 2021 letters. The AOJ also requested this information from the Veteran in letters sent in November 2020 and twice in January 2021. The AOJ ultimately determined that the records cannot be located and further attempts to obtain the records would be futile. The Board finds the Veteran's statement to be insufficient to support a finding that he did not train for 51 days in FY 2016. The Veteran has not produced Form 21-8651, signed by a unit commander or designee, or any other evidence to dispute the training days as reported by the Defense Manpower Data Center (DMDC). Further, the Veteran has submitted inconsistent statements regarding the number of drill pay days he served in FY 2016, and did not respond to AOJ attempts to obtain additional information. VA's duty to assist a veteran in developing the facts and evidence pertinent to an appellant's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of appellants to cooperate with VA. See Olson v. Principi, 3 Vet. App. 480, 483 (1992). As such, the Veteran has not provided any evidence supporting his claim that he had fewer than 51 drill days in FY 2016. Consequently, the Board must find that the preponderance of the evidence of record establishes that the Veteran completed 51 drill days for military pay purposes during FY 2016. The Board has considered whether there was sole administrative error in the concurrent payment of VA compensation and military drill pay. The Board finds that the overpayment was not solely due to VA error. Sole administrative error entails no knowledge or fault on the part of the debtor. See Jordan, 10 Vet. App. 171. The Board finds that the Veteran was aware that he was not entitled to receive active duty training pay concurrently with VA disability compensation, as the Veteran was notified of this fact on multiple occasions. Yet, he continued to receive the same monthly payment at the full rate despite his knowledge that he was not entitled to the full amount. Therefore, any delay in the adjustment of his compensation benefits was not the only cause of the overpayment debt and does not constitute sole administrative error. 38 U.S.C. § 5112 (b)(10); 38 C.F.R. § 3.500 (b)(2). Therefore, the Board finds that the AOJ appropriately withheld the Veteran's VA compensation benefits for FY 2016 during which, the Veteran was in receipt of military drill pay and compensation benefits. Accordingly, the reduction in VA disability compensation benefits to offset the concurrent receipt of active service drill pay was proper, and the debt is valid. The application of the law to the facts in this case is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, Associate 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.