Citation Nr: 21014937 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-55 429 DATE: March 16, 2021 REMANDED Whether the $4,357.49 debt created due to Fiscal Year (FY) 2015 military drill pay collected simultaneously with Department of Veterans Affairs (VA) disability compensation pay was properly calculated is remanded. REASONS FOR REMAND The Veteran has served on active duty and in the Reserves for the United States Marine Corps. The matter on appeal comes before the Board of Veterans’ Appeals (Board) from a September 2016 determination by the VA Regional Office (RO) to collect a $4,357.49 debt related to the Veteran’s drill pay for FY 2015. The Veteran has appealed and indicates agreement with the assessment being based upon 40 drill days in FY 2015, but contends the RO incorrectly computed the overpayment due. In particular, the RO has computed the amount due based upon the Veteran’s 100 percent disability rating; however, the Veteran contends he was rated at 20 percent disabling during his 40 days of receiving drill pay in FY 2015 and feels he should have the debt calculated at that rate. The law prohibits the receipt of VA disability compensation benefits for any period for which a person receives active service pay. 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. 38 U.S.C. § 5304(c); 38 C.F.R. §§ 3.654, 3.700. The RO, in its July 2017 statement of the case (SOC), indicated that the “law requires that VA withhold for drill pay based on the payment rate at which you were entitled to receive on the last day of the fiscal year, which was September 30, 2015. On this date you were entitled to receive $3,268.12, which is the amount payable for a 100% disabled veteran with a spouse and two children.” A review of the claims file reveals that the Veteran is service connected for posttraumatic stress disorder (PTSD), a right knee disability, and tinnitus, and he has had a 100 percent disability rating since July 17, 2015. Initially, the Board notes that the July 2017 SOC suggested what the law requires; however, the SOC, in its section for “Pertinent Laws; Regulations; Rating Schedule Provisions” provided reference to no such law. Under 38 C.F.R. § 19.29(b), the SOC must include a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination. The July 2017 SOC did not meet this requirement. Moreover, while VA generally withholds benefits at the same rate VA was paying the Veteran on the last day of the fiscal year in which the Veteran received drill pay, if the actual dates on which the Veteran attends drills or training are known, then according to VA manuals, the VA will withhold benefits at the same rate VA was paying the Veteran on those dates. The RO in this case made no effort to determine the actual days the Veteran was receiving drill pay in FY 2015 to determine whether they were prior to July 17, 2015, the date he began receiving a 100 percent rating. On remand, the RO should (1) provide the Veteran the opportunity to submit any further documentation necessary to determine the exact dates that he attended drill or training during FY 2015; (2) review all documentation submitted by the Veteran which may contain information as to the actual dates on which the Veteran attended drill or training during FY 2015; and (3) recalculate the amount of benefits that should be withheld based on the entirety of the record. This matter is REMANDED for the following action: 1. Provide the Veteran with instructions as to the type of evidence that is acceptable to prove the exact dates that he attended drills or trainings during FY 2015. Allow the Veteran an appropriate amount of time to respond. 2. Recalculate the proper amount of withholding of VA compensation by using the correct compensation amount corresponding to each month that the Veteran had drill pay days or trainings during FY 2015. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, and the Veteran remains in the Legacy appeals system, the Veteran and his representative should be issued a supplemental statement of the case, which includes a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination. An appropriate period of time should be allowed for response. 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.