Citation Nr: 21028472 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-22 412 DATE: May 11, 2021 ORDER The retroactive compensation payment for Combat Related Special Compensation (CRSC) was calculated properly and the appeal is denied. FINDING OF FACT The Veteran received compensation based on a combined disability rating of 100 percent beginning June 1, 2004. CONCLUSION OF LAW The retroactive compensation payment for CRSC was calculated properly and the criteria for award of additional retroactive CRSC payments have not been met. 10 U.S.C. § 1414. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1985 to April 2005. This matter come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 decision issued by the RO. In November 2018, the Board remanded the claim for additional development. In pertinent part, the Board instructed the RO to conduct an audit of the Veteran's payment history to ensure he received the full amount of VA compensation benefits he is entitled to. In December 2020, the RO conducted an audit of the Veteran's VA compensation benefits, documenting the exact amount of benefit payments made to him. Thus, the requested development has been completed and the case has been returned for appellate disposition. 1. Whether the retroactive payment of $86,629.70 made in July 2013 for Combat Related Special Compensation (CRSC) was calculated properly 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. 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 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). The Veteran contends that he has not received the appropriate dependency allowance in his retroactive award. The Veteran also asserts that he should receive dependency allowance for his two biological children for most of the retroactive period because they were in school. In a July 2011 rating decision, the Veteran was granted an earlier effective date for the award of a total disability rating based on individual unemployability effective May 1, 2004, the date following his discharge from service. Thereafter, an October 2011 Defense Finance and Accounting Service (DFAS) Audit Error Worksheet (AEW) shows the specific amounts of CRSC compensation the Veteran was entitled to for each month from June 2004 to May 2011. A July 2013 VETSNET Compensation and Pension Award record reflects that based on the October 2011 DFAS AEW, the Veteran was entitled to retroactive compensation in the amount of $86,629.70. He was paid as a Veteran with spouse and two dependents beginning June 1, 2004. He and his wife divorced in July 2005, and she was removed from his award on August 1, 2005. His oldest son turned 18 and was removed from the award on January 26, 2007; his youngest son turned 18 and was removed from the award on September 30, 2008. In July 2013, the Veteran was notified that based on the information in his military retired files and VA records, he was entitled to a retroactive CRSC compensation payment of $86,629.70, covering the period from June 1, 2004 to May 31, 2011. The Veteran was advised that records indicated that he had previously been paid $8,466.00. In a Declaration of Status of Dependents received in January 2015, the Veteran reported that he was married and had one stepchild and 2 biological children that were between the ages of 18 and 23 years old and were in school. An August 2016 VBMS Compensation and Pension Award record reflects that the Veteran was entitled to compensation in the amount of $4,200.27 because of the addition of his wife to his award effective July 1, 2014. His former spouse was removed from his award on August 1, 2005; his oldest son turned 18 and was removed from the award on January 26, 2007; his youngest son turned 18 and dropped of the award on September 30, 2008; and, his current spouse was added to the award July 1, 2014. In August 2016, the Veteran was notified that VA was unable to add his current spouse to the award any earlier because VA received information of the marriage over a year after the date of the event. In addition, the Veteran was notified that there was no record of schooling for his biological children, so he was not entitled to additional dependency allowance for them for the ages between 18 to 23 years old. Finally, the Veteran was advised that his stepson could not be added to his award as a relationship had not been established. A June 2020 VBMS Compensation and Pension Award record reflects that the Veteran was entitled to compensation in the amount of $853.00 because of the addition of his stepson to his award effective July 1, 2004. His step-son dropped of his award July 31, 2005; his former spouse was removed from his award on August 1, 2005; his oldest son turned 18 and was removed from the award on January 26, 2007; his youngest son turned 18 and was removed from the award on September 30, 2008; and, his current spouse was added to the award July 1, 2014. In June 2020, VA notified the Veteran that his claim for additional dependency benefits had been granted because his stepson was added to the award effective June 1, 2004. The stepson was removed from the award effective July 31, 2005 because the Veteran divorced his legal parent on July 30,2005. In addition, the Veteran was notified that additional benefits could not be paid for his biological children until information was received concerning their schooling after their 18th birthdays. The Veteran was encouraged to complete the Request for Approval of School Attendance form for each child for each semester of school that they completed after their 18th birthdays. In December 2020, VA conducted an audit of compensation and pension benefit payments made to the Veteran. The audit reflects that from June 1, 2004 to November 30, 2020, the Veteran was paid compensation totalling $434,193.17. In addition, the Veteran received one-time retroactive payments of $6,239.00 (May 30, 2008); $1,392.00 (March 4, 2009); $5,216.00 (March 4, 2009); $92.00 (March 4, 2009); $1,288.00 (June 15, 2009); $1,168.00 (March 4, 2010); $6,678.04 (June 14, 2011); $18,696.48 (August 4, 2011); $86,478.37 (July 21, 2013); $4,200.27 (September 1, 2016); and, $853.00 (June 24, 2020). The total compensation paid to the Veteran was $566,494.33. The audit reflects that from June 1, 2004 to November 30, 2020, the Veteran was owed compensation totalling $564,020.37. Thus, he had been overpaid by $2,473.96. The July 2013 VETSNET Compensation and Pension Award record (based on the October 2011 DFAS AEW) reflects that the Veteran was entitled to retroactive compensation for CRSC in the amount of $86,629.70 as a Veteran with spouse and 2 dependents from June 1, 2004 to May 31, 2011. However, the Veteran should have received additional dependence allowance for his stepson from June 1, 2004 to July 2005 (when he divorced his stepson's legal parent). Thus, in June 2020, VA granted additional dependency benefits and added the Veteran's stepson to the award effective June 1, 2004 to July 31, 2005 (when he divorced his stepson's legal parent). As a result, VA paid the Veteran additional retroactive compensation in the amount of $853.00. To the extent that the Veteran argues that he should receive additional dependency allowance for his two biological children for most of the retroactive period because they were in school (i.e., they were in school and between the ages of 18 to 23 years old from 2007 to 2012 (oldest son) and from 2008 to 2013 (youngest son)), the Board reiterates that in June 2020, the Veteran was encouraged to complete the Request for Approval of School Attendance form for each child for each semester of school that they completed after their 18th birthdays. To date, VA has not received a response from the Veteran. Accordingly, the retroactive compensation payments for CRSC were calculated properly and the Veteran is not entitled to any additional retroactive compensation. Vito A. Clementi 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.