Citation Nr: 21028341 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-41 031 DATE: May 11, 2021 ORDER The overpayment of disability compensation benefits to recoup 13 days of military drill pay for Fiscal Year (FY) 2013 is reduced by $743.03. FINDINGS OF FACT 1. The Veteran received both drill pay and Department of Veterans Affairs (VA) compensation benefits for 13 days in FY 2013. 2. The Veteran was paid different rates of compensation for the periods of November 2012, and March through August 2013. 3. The Agency of Original Jurisdiction assessed an overpayment of $1,473.33 using the rate of payment from October 2013, instead of the rates actually paid to the Veteran for the periods in which the drill days occurred. 4. Correctly calculated, the Veteran's overpayment due to 13 drill pay days in FY 2013 is $730.30. CONCLUSION OF LAW The Regional Office (RO) properly withheld the Veteran's VA compensation benefits for 13 days of FY 2013, during which he was in receipt of military drill pay; but improperly calculated such withholding. 10 U.S.C. § 12316; 38 U.S.C. § 5304 (2020); 38 C.F.R. §§ 3.654, 3.700 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had service in the United States Army and Army National Guard. He had a period of active duty for training (ACDUTRA) from June 2003 to October 2003; and periods of active duty from January 2005 to August 2006, and July 2010 to August 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a VA RO. In April 2020, the Board remanded the case for additional development and it now returns for further appellate review. Propriety of the reduction in VA disability compensation for the recouping of 13 days of military drill pay for FY 2013. 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). An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits in excess of the amount to which he or she was entitled. 38 C.F.R. § 1.962. Whenever the Secretary finds that an overpayment has been made to a veteran or eligible person, the amount of such overpayment shall constitute a liability of such veteran or eligible person to the United States. See Mountford v. Shinseki, 24 Vet. App. 443, 450, n.6 (2011) (citing 38 U.S.C. §§ 3685, 5314). To establish improper creation of an overpayment, i.e., an invalid debt, evidence must show that the Veteran 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. Turning to the evidence of record, in a February 2014 letter, the RO notified the Veteran of a proposal to retroactively adjust the Veteran's compensation benefits for FY 2013 based on 13 drill days completed during that time. Thereafter, no action was taken. Then, in February 2015 the RO again notified the Veteran of the proposal with the same letter. The RO notified the Veteran it planned on adjusting the compensation level based on the rate at the end of FY 2013. The Veteran responded that he did not know the exact amount of drill days, but disputed the number and estimated he participated in 3 drill days, and disputed the amount being withheld. Notwithstanding, the RO reduced the VA disability compensation for FY 2013 to recoup the 13 days of drill pay. Such action resulted in an overpayment confirmed by the VA Debt Management Center, which was calculated erroneously based on the rate of compensation at the beginning of FY 2014, i.e. on October 1, 2013. The record confirms that the Veteran completed 13 drill days in FY 2013. In this regard, November 2013 and September 2014 Army National Guard Retirement Points Statement Supplemental Detailed Reports show the Veteran completed two AM assemblies and one PM assembly in November 2012, two AM assemblies and 3 PM assemblies in March 2013, one AM assembly in April 2013, one AM assembly and two PM assemblies in May 2013, and one AM assembly in August 2013. Consequently, as the Veteran received concurrent VA disability and active service pay for those dates, the Board finds that the withholding of the Veteran's VA compensation benefits for 13 days of FY 2013 was proper. However, the RO incorrectly calculated the adjustment by assessing the debt at erroneous pay rates. The Veteran's total compensation rates were adjusted six times over the course of FY 2013. Specifically, for November 2012, the Veteran's monthly disability compensation was $1,671. For March through August 2013, his monthly disability compensation was $1,699. Thus, the Veteran had three drill pay days while at the $1,671 rate, and ten drill pay days while at the $1,699 rate. The RO stated the Veteran's overpayment adjustment would be based on his total compensation rate as of September 30, 2013; however, it was actually calculated at the rate for October 1, 2013, the first day of the next FY. The Veteran was awarded a total disability rating due to individual unemployability effective September 7, 2013. Payments are not 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. As a result, the Veteran did not receive the total disability rate for any payment in FY13. The Veteran's overpayment was calculated to total $1,473.33. Dividing the overpayment by 13 for each drill pay day and multiplying by 30 for the average number of days in a month shows that the overpayment was calculated based on $3,400, the Veteran's monthly payment at the rate for a total disability rating based on individual unemployability, which was effectuated in October 2013. Therefore, the Board finds that the Veteran's adjustment calculation for the overpayment caused by concurrent payment for compensation benefit and drill pay over 13 days of FY 2013 was incorrect. The matter that remains is correctly calculating his overpayment. To do so, the Board will use the formula applied by the agency of original jurisdiction: to divide the actual monthly disability compensation by 30 and multiply the number of drill pay days. For the drill days in November 2012, the Veteran's monthly compensation rate was $1,671. During that month, the Veteran underwent 3 days of drill pay. The average disability compensation per day is $55.70. Multiplied by 3 results in an overpayment of $167.10. For the period from March 2013 to August 2013, the Veteran's monthly compensation rate was $1,699. During these months, the Veteran had 10 days of drill pay. The average disability compensation per day is $56.33. Multiplied by 10 results in an overpayment of $563.30. Therefore, his total overpayment for the recoupment of concurrent drill pay and VA disability compensation was $730.30. Consequently, the recoupment of concurrent pay, which was calculated by the RO as $1,473.33, resulted in excess recoupment of $743.03. Thus, although the debt to be recouped by VA was valid, the Board concludes the amount must be reduced, and the Veteran's appeal is granted to this extent only. J. B. FREEMAN 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.