Citation Nr: 21074437 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-36 093A DATE: December 15, 2021 ORDER The reduction in Department of Veterans Affairs (VA) disability compensation due to concurrent receipt of military service drill pay for Fiscal Year (FY) 2016 was proper; the appeal is denied. FINDINGS OF FACT 1. The Veteran received military drill pay for a period of 59 days in FY 2016. 2. The Veteran's VA disability compensation was properly reduced for concurrent receipt of military service drill pay for a period of 59 days in FY 2016. CONCLUSION OF LAW The reduction in the VA disability compensation benefits to offset the concurrent receipt of active service drill pay for a period of 59 days in FY 2016 was proper. 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 in the United States Army National Guard with active service from January 28, 2005 to April 9, 2006; June 22, 2008 to August 8, 2009; and May 3, 2012 to May 13, 2013. This matter comes before the Board of Veterans' Appeals (Board) from an August 2017 decision by the VA Regional Office (RO) to retroactively adjust the Veteran's compensation benefits by $1,586.71 per month from March 1, 2016 to April 30, 2016, based on 59 drill days completed in FY 2016. The adjustment resulted in a $3,120.53 debt. 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 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. 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 May 2017, the RO informed the Veteran that VA received information from the Defense Manpower Data Center (DMDC), which showed he received military drill pay concurrently while receiving VA benefits. He was provided a VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances. He was told that based on this information, VA would take steps to make a retroactive adjustment for the days he was receiving drill pay, which, in this case, was 59 days during FY 2016. He was told he had the right to complete the appropriate sections of the VA Form 21-8951, and indicate to VA that he disputes the number of days listed in the VA Form 21-8951 for which he performed drill. He was provided 60 days from the date of the letter to provide the information to VA. The form provides a place for the Veteran to indicate the number of drill days served, and for him to sign this form, secure the signature of his unit commander or designee, and return the completed form to VA. The Veteran did not subsequently furnish this form. The only communication that came from the Veteran within the 60 days was a July 2017 request by him to have his retroactive adjustment related to FY 2017 drill days taken from his VA compensation. Thereafter, in August 2017, the Veteran was informed that the RO had taken the proposed action related to FY 2016, and that this action resulted in a $3,120.53 debt. In September 2017, the Veteran submitted a notice of disagreement (NOD). On the NOD form he suggested VA was using incorrect training days because the debt was based on 59 drill days, but as of September 2017 he had only 39 drill days. The Veteran appeared to misunderstand that the debt being created related to FY 2017. Rather, the 59 drill days were for FY 2016. In March 2018, a VA representative from the RO contacted the Veteran by telephone. The Veteran repeated his lack of understanding as to why 59 days were being collected when he had only 39 days as of September 2017. The VA representative explained to the Veteran that the debt was for FY 2016, which ran from October 1, 2015 to September 30, 2016. There was no indication in this memorandum that the Veteran objected or lacked understanding with this explanation. The Veteran indicated to the caller that he would check his records and the call ended. The Board notes that the claims file also includes subsequent communication with the Veteran in April 2019 related to the 39 drill days in FY 2017. The Veteran has not indicated any disagreement with the debt created related to that retroactive adjustment. He has also not provided any additional statements related to the FY 2016 debt. The Veteran did sign and submit a VA Form 9 in December 2019 to perfect his appeal, but no additional argument has been provided by him. The Board recognizes the Veteran's representative's October 2021 argument that there is no evidence of payment of 59 days in FY 2016 and that a remand is needed in order to acquire the Veteran's National Guard drill pay records. The Board finds, however, that remand for this purpose is not necessary. The Veteran has not argued that he was not paid for his FY 2016 drill days. He also did not submit the paperwork to suggest he objected to the 59 days assessed against him for FY 2016, despite being given an opportunity to do so. The arguments made related to this appeal are limited to the misunderstanding that the RO was collecting a debt related to the 39 FY 2017 drill days, while this appeal relates to the 59 FY 2016 drill days. The Veteran was notified that this related to FY 2016 in the May 2017 letter, the August 2017 letter, and at the time of the March 2018 telephone call. The Board finds a remand to obtain payroll information is not needed to decide this appeal. Based on a review of the record, the Board finds that the RO appropriately withheld the Veteran's VA compensation benefits for 59 drill days in FY 2016. Accordingly, the reduction in the VA disability compensation benefits to offset the concurrent receipt of military drill pay was proper. The appeal is therefore, denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.