Citation Nr: 21023025 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 20-00 836 DATE: April 19, 2021 ORDER An amount greater than $4,885.12 for entitlement to retroactive Concurrent Receipt of Retired and Disability Pay (CRDP) for the period from August 1, 2012 through January 1, 2016 is denied. FINDING OF FACT The Veteran was not entitled to payment of CRDP prior to August 1, 2012 and has separately received payment of CRDP for the period after January 1, 2016. CONCLUSION OF LAW The criteria for entitlement to an amount greater than $4,885.12 for retroactive CRDP for the period from August 1, 2012 through January 1, 2016 have not been met. 10 U.S.C. § 1414; 38 U.S.C. §§ 5304 (a)(1), 5305; 38 C.F.R. § 3.750. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to September 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 decision issued by the RO. The Veteran testified before the undersigned in a virtual hearing in March 2021. During the March 2021 hearing, the Veterans Law Judge (VLJ) indicated that there were two appeals being merged, noting that the issues of entitlement to an earlier effective date for the grant of service connection for thyroid cancer; entitlement to an increased rating for thyroid cancer; and entitlement to an increased rating for hypothyroidism were being merged with the issue of entitlement to additional retroactive CRDP for the period from August 1, 2012 through January 1, 2016 (the issue currently before the Board). The Veteran also testified on the issues of entitlement to an earlier effective date for the grant of service connection for thyroid cancer; entitlement to an increased rating for thyroid cancer; and entitlement to an increased rating for hypothyroidism at an April 2018 hearing before the undersigned VLJ and these issues were remanded by the Board in October 2019 and were again remanded by the Board in August 2020. The Veteran provided further testimony in support of these claims at the March 2021 Board hearing and the Board acknowledges the Veteran’s frustration with the time the appeal has been pending since he filed the claim that resulted in that appeal in April 2008. The Board notes that because RO continues to undertake development of those claims they are still in the jurisdiction of the RO. The Board is unable to merge issues that are not in the jurisdiction of the Board. Thus, regrettably, the issues of entitlement to an earlier effective date for the grant of service connection for thyroid cancer; entitlement to an increased rating for thyroid cancer; and entitlement to an increased rating for hypothyroidism are not currently before the Board on appeal and will be addressed in a subsequent Board decision in docket order once the RO has completed the requested development and returned the claims to the Board for further appellate disposition. 1. Entitlement to an amount greater than $4,885.12 for retroactive CRDP for the period from August 1, 2012 through January 1, 2016 The Veteran retired and discharged from service on September 30, 2005, after more than 20 years of active duty service in the United States Air Force. In an October 2017 rating decision, the RO, in part, granted an increased 100 percent rating for thyroid cancer, status post thyroidectomy with hyperthyroidism for the period from June 25, 2012 to January 22, 2016. In October 2017 correspondence, the Veteran was notified that he may be eligible for full or partial concurrent receipt of VA compensation and military retired pay under the Combat-Related Special Compensation (CRSC) and/or CRDP programs. He was informed that his retired pay center (RPC) was notified of this award (of an increased rating for his thyroid cancer, status post thyroidectomy with hypothyroidism) and if his RPC determined the withholdings from VA compensation should be retroactively adjusted due to CRDP, VA would be notified and adjust VA compensation accordingly. In June 2018, VA informed the Veteran that based on the information in military retired pay files and VA records, he was entitled to a retroactive CRDP compensation payment of $5,157.31. VA informed the Veteran that it had received notification that Defense Finance and Accounting Service (DFAS) had previously paid $272.19; therefore, he would receive the remaining $4,885.12 ($5,157.31 - $272.19). This payment covered the period from August 1, 2012 through January 1, 2016. The VA attached the December 2017 DFAS Audit Error Worksheets (AEW) for review. The Veteran’s Notice of Disagreement as to this June 2018 decision was received in July 2018. The Veteran asserted that the December 2017 DFAS AEW was not inclusive of the 100 percent award dates of July 25, 2012 to January 22, 2016 (i.e., he should receive retroactive CRDP from July 25, 2012 through January 22, 2016). He also asserted that there was no record of any previous DFAS payment of $272.19 (i.e., he should receive the full amount of retroactive CRDP compensation he is entitled to). In general, there is a prohibition on the concurrent payment of military retired pay and VA disability compensation pay without a waiver of a portion of the retired pay. See 38 U.S.C. § 5304; see also 38 U.S.C. § 5305. Legislation, however, was subsequently enacted to allow certain Veterans to receive some measure of concurrent payments for both their retired military pay and their VA disability compensation. The two programs are known as Combat Related Special Compensation (CRSC) and Concurrent Retirement and Disability Payment (CRDP). The National Defense Authorization Act of 2004 established CRDP, effective January 1, 2004. CRDP is a program that is available to military retirees who served a minimum of 20 years creditable service, including service in the National Guard and Reserves. CRDP restores some or all of the military retired pay that was deducted due to receipt of VA service-connected disability compensation. Retirees must be rated 50 percent or more disabled by VA. For purposes of CRDP, qualifying service-connected disability means a service-connected disability or combination of service-connected disabilities that is rated as not less than 50 percent disabling by the Secretary of Veterans Affairs. See 10 U.S.C. § 1414 (a)(2). In this case, based on the increased rating award documented in the October 2017 rating decision, the Veteran was entitled to retroactive CRDP payments as outlined in the December 2017 DFAS AEW supplied to him with the June 2018 notice letter from August 1, 2012. To reiterate, the Veteran asserts he is entitled to the retroactive CRDP compensation, effective July 25, 2012, the date his increased rating award is effective. However, the Board notes that payment of monetary benefits may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. Thus, the Veteran is not entitled to retroactive payment of CRDP for any period prior to August 1, 2012 (i.e., the period from July 25, 2012 to July 31, 2012). In addition, the Board notes that the Veteran was awarded additional retroactive CRDP from January 1, 2016 through April 30, 2020, based on the award of additional VA compensation benefits as documented in the May 2020 rating decision and detailed in the June 2020 DFAS AEW. Thus, his argument to entitlement to additional retroactive CRDP for the period after January 1, 2016 is moot as the June 2020 DFAS AEW reflects that he was awarded additional retroactive CRDP for the period from January 1, 2016. As for the Veteran’s assertion that there was no record of any previous DFAS payment of $272.19 (as reflected in the December 2017 DFAS AEW), the Board notes that VA is bound by that finding. DFAS is a separate entity of the Department of Defense and is not governed by VA. VA does not have jurisdiction to amend DFAS findings. For these reasons, the Veteran’s claim for an amount greater than $4,885.12 for retroactive CRDP for the period from August 1, 2012 through January 1, 2016 is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.