Citation Nr: 21028906 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-37 772 DATE: May 12, 2021 ORDER The creation of overpayment debt of VA disability compensation in the amount of $4,367.12 based on the receipt of military drill pay for Fiscal Year (FY) 2015 was proper, and the appeal is denied. FINDINGS OF FACT 1. The Veteran was in receipt of VA disability compensation benefits when he received drill pay for 38 drill days for FY 2015. 2. The Veteran's VA disability compensation was properly reduced for concurrent receipt of military service drill pay for a period of 38 days for FY 2015. CONCLUSION OF LAW An overpayment debt of disability compensation in the amount of $4,367.12 based on the receipt of military drill pay for FY 2015 was validly created. 38 U.S.C. §§ 5107, 5304(c); 38 C.F.R. §§ 3.654, 3.700. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 2002 to July 2002, from January 2003 to October 2004, and from October 2012 to September 2013. In August 2018, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development, to include obtaining verification of the Veteran's drill days from the Defense Finance Accounting Service (DFAS) or the Defense Manpower Data Center, and obtaining a paid and due audit. Upon further review of the record, the Board notes that while a paid and due audit has not been associated with the record, all of the evidence necessary to evaluate the claim (to include the DFAS payment worksheet) has been associated with the record. As such, the Board finds that there has been substantial compliance with the Board remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The appeal has been returned to the Board for further consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C. § 7107(a)(2). A sympathetic review of the record indicates the Veteran has also requested a waiver of the debt, claiming financial hardship. Because the RO has not yet considered the Veteran's waiver request, the Board does not have jurisdiction of that issue. 38 C.F.R. § 19.9(b); see also 38 C.F.R. § 1.911(c)(1); VAOPGCPREC 6-98. The Board may still decide the instant issue of the validity of the debt. Schaper v. Derwinski, 1 Vet. App. 430, 434 (1991). Validity of Debt 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. The Veteran had military drill pay for a period of 38 days in FY 2015. In June 2016, VA notified the Veteran that it proposed to reduce his compensation payments and provided VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances showing that the Veteran had 38 drill days during FY 2015. In July 2015, the Veteran signed and returned Form 21-8951. The Veteran agreed to the number of drill days and requested a payment arrangement for the debt. The Veteran did not indicate whether he wanted to waive VA benefits or military pay. In September 2016, VA notified the Veteran that it reduced his compensation payments due to concurrent receipt of military training pay and VA compensation benefits for FY 2015. VA informed the Veteran that these adjustments resulted in a debt of $4,367.12. The Veteran disputes the validity of the debt created due to concurrent receipt of VA compensation and active duty military pay. Specifically, the Veteran asserts that he had no drill days in FY 2015 due to symptoms of posttraumatic stress disorder (PTSD). The Board finds the evidence of record supports a finding that the Veteran trained for 38 days during FY 2015. The Board acknowledges the Veteran's assertion that he had no drill days in FY 2015. In support of this assertion, the Veteran submitted a second Form 21-8951 in January 2021, unsigned by his unit commander, indicating no drill days in FY 2015. The Board finds the Veteran's statement to be insufficient to support a finding that he did not train for 38 days in FY 2015. A DFAS payment worksheet associated with the record in February 2021 shows that the Veteran had morning and afternoon drill from April 28, 2015 to May 1, 2015, from May 4, 2015 to May 8, 2015, from May 11, 2015 to May 15, 2015, from May 26, 2015 to May 29, 2015, and on May 31, 2015. As such, this worksheet indicates a total of 38 drill days in FY 2015. The Veteran has not produced Form 21-8651, signed by a unit commander, or any other evidence to dispute the DFAS records. As such, the evidentiary record directly contradicts the Veteran's statements, and the Veteran has not provided any evidence supporting his claim that he had no drill days in FY 2015. Consequently, the Board must find that the preponderance of the evidence of record establishes that the Veteran completed 38 drill days for military pay purposes during FY 2015. The Board has considered whether there was sole administrative error in the concurrent payment of VA compensation and military drill pay. The Board finds that the overpayment was not solely due to VA error. Sole administrative error entails no knowledge or fault on the part of the debtor. See Jordan, 10 Vet. App. 171. The Board finds that the Veteran was aware that he was not entitled to receive active duty training pay concurrently with VA disability compensation, as the Veteran was notified of this fact on multiple occasions. Yet, he continued to receive the same monthly payment at the full rate despite his knowledge that he was not entitled to the full amount. Therefore, any delay in the adjustment of his compensation benefits was not the only cause of the overpayment debt and does not constitute sole administrative error. 38 U.S.C. § 5112 (b)(10); 38 C.F.R. § 3.500 (b)(2). Therefore, the Board finds that the AOJ appropriately withheld the Veteran's VA compensation benefits for FY 2015 during which, the Veteran was in receipt of military drill pay and compensation benefits. Accordingly, the reduction in VA disability compensation benefits to offset the concurrent receipt of active service drill pay was proper, and the debt is valid. The application of the law to the facts in this case is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, Associate 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.