Citation Nr: 21006004 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-08 043 DATE: February 3, 2021 REMANDED Whether the decision to withhold VA compensation benefits in order 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. This matter is on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran appeared at a Board hearing via videoconference before the undersigned Veterans Law Judge. The transcript of this hearing has been obtained and associated with the record. In June 2018, the Board remanded the case for additional development and it now returns for further appellate review. Whether the decision to withhold VA compensation benefits in order to recoup 8 days of drill pay received in FY 2009 was proper. The Veteran contends that the reduction in VA disability compensation in order to recoup 8 days of drill pay in FY 2009 is in error. Specifically, the Veteran contends he never received any payment for drill days in FY 2009. Unfortunately, the Board finds another remand is necessary to ensure compliance with previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 the instant case, the record reflects that the Veteran was recorded as completing 8 drill days in FY 2009, specifically, his personnel records show he participated in 4 assemblies in October 2008 and 4 assemblies in November 2008. See September 2013 Army National Guard Retirement Points Statement; see also Master Military Pay Account (MMPA) Calendar Year 2008. Nonetheless, the Veteran contends that he never received actual payment for those recorded drill days. Accordingly, the Board remanded to obtain pay records from the Defense Finance and Accounting Service (DFAS), the Defense Joint Military Pay System – Reserve Component (DJMS – RC), or any other appropriate agency. Pertinent to the instant appeal, the Board asked for the Leave and Earnings Statements (LES) for FY 2009. Following the remand, LES from January through September 2009 were added to the record, as well as the MMPA from December 2008 noted above. However, LES from October, November, and December 2008 were not included in these records. As those months are the specific months he was recorded as training, these LES are particularly important to the appeal, and another remand is necessary to obtain such LES records. The matters are REMANDED for the following action: Obtain the Veteran’s LES from October, November, and December 2008 from the DFAS, DJMS – RC, or any other appropriate government document repository. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records 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 such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. K. MILLIKAN 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.