Citation Nr: 21026701 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-41 312 DATE: May 3, 2021 ORDER The reduction in Department of Veterans Affairs (VA) disability compensation for the purpose of recouping military drill pay for 40 days from fiscal years (FY) 2016 was proper; the appeal is denied. FINDING OF FACT The Veteran received concurrent VA disability compensation and military drill pay for 40 days during FY 2016. CONCLUSION OF LAW The withholding of the Veteran's VA compensation benefits for 40 drill days for FY 2016 was proper. 38 U.S.C. § 5304; 38 C.F.R. §§ 3.654, 3.700. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2004 to August 2009. In September 2019, the Board remanded the claim for further development. Validity 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. Analysis The Veteran challenges the validity of an overpayment created when she received VA compensation concurrently with military drill pay in FY 2016. In January 2014, the Veteran's VA compensation benefit award was increased from zero to 10 percent effective August 14, 2009. Attached to the Notification Letter was VA Form 21-8764 which informed the Veteran that receipt of active duty or drill pay as a reservist or member of the Federally recognized National Guard could affect her rights to compensation payments. In February 2015 and June 2016, VA mailed the Veteran VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances. The forms notified the Veteran that, based on her social security number, the Defense Manpower Data Center (DMDC) had identified her as a reservist or guardsman who received training pay for 69 days during FY 2014 and 36 days during FY 2015. The forms advised the Veteran that active or inactive duty training pay could not legally be paid concurrently with VA disability compensation. She was advised to sign and return the waivers; however, if she did not return the waivers, it would be assumed that she wished to waive VA compensation for the number of days printed on the front of the forms. The Veteran signed the form and acknowledged drilling 69 days in FY 2014. However, she did not return the form for FY 2015; so, in September 2016, VA reduced the Veteran's benefits for 36 drill pay days for FY 2015. The reduction resulted in a $2,041.78 debt. The Board notes that the Veteran did not appeal this decision. As such, it is not before the Board. In May 2017, VA mailed the Veteran VA Form 21-8951. The form indicated that the Veteran had received 40 days of military drill pay in FY 2016. She was advised to sign and return the waiver; however, if she did not return the waiver, it would be assumed that she wished to waive VA compensation for the number of days printed on the front of the form. The Veteran did not return the form. In August 2017, VA retroactively adjusted the Veteran's compensation benefits based on 40 drill days for FY 2016. The adjustment resulted in a $4,727.75 debt. In her September 2017 Notice of Disagreement and August 2018 Substantive Appeal, the Veteran stated that she drilled a total of 18 days during FY 2016 and her term expired on July 27, 2016. She also stated that during FY 2016, she received 70 percent disability and only received 100 percent for one month. Therefore, the debt amount and drill days were incorrect. In September 2019, the Board acknowledged the Veteran's NOD. Based on the Veteran's contention, the Board remanded the claim to verify the Veteran's drill days and the debt amount. In July 2020 and based on the remand directives, VA requested information from the Veteran regarding her reserve or guard unit. However, she did not respond. On September 9, 2020, VA reduced her compensation benefits based on 40 days for FY 2016. A September 16, 2020 Supplemental Statement of the Case (SSOC) confirmed the reduction. In a September 24, 2020 telephone conversation, the Veteran acknowledged receiving the SSOC. She stated that she did not have any additional evidence to submit. Based on the evidence of record, the Board finds that the creation of the debt is valid. The law prohibits the receipt of VA disability compensation benefits for any period for which the Veteran receives active service or drill pay. See 38 C.F.R. §§ 3.654, 3.700. Here, it was reported that the Veteran received 40 days of drill pay concurrently with VA disability compensation during FY 2016. In order to confirm the Veteran's drill pay days, VA requested information from the Veteran; however, she did not respond to the request. The Board notes that an appellant has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). As such, the Board finds that the Veteran received 40 days of drill pay concurrently with VA disability compensation during FY 2016. Additionally, the overpayment was not solely due to VA administrative error. Sole administrative error entails no knowledge or fault on the part of the debtor. See Jordan, 10 Vet. App. 171. In January 2014, the Veteran received VA Form 21-8764. The form noted that receipt of active duty or drill pay as a reservist or member of the Federally recognized National Guard could affect her rights to compensation payments. Additionally, from February 2014, the Veteran began receiving VA Form 21-8951 informing her that active or inactive duty training pay could not legally be paid concurrently with VA disability compensation. Therefore, the Board finds that the Veteran knew that she was not legally entitled to receive compensation benefits concurrently with military drill pay. As such, the Board finds that the Veteran's debt was not solely due to VA administrative error. The Board finds that the debt created for FY 2016 is valid. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The application of the law to the facts in this case is dispositive. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore 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.