Citation Nr: 21029099 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-00 109A DATE: May 12, 2021 ORDER Entitlement to the payment of additional retroactive disability benefits is denied. FINDINGS OF FACT 1. The Veteran separated from active service on July 31, 2014, and a December 2014 rating decision granted service connection for a variety of disabilities and assigned a combined 100 percent rating as of August 1, 2014, the day after the Veteran's separation from service. 2. In March 2015, the Veteran was notified that he was entitled to a retroactive compensation payment of $13,923.22, covering the period from September 2014 through February 2015, to restore money withheld to prevent the concurrent payment of military retirement and VA disability pay. 3. The evidence of record does not reflect that the amount of retroactive benefits awarded was improperly calculated or that the Veteran was not paid for any month in which he was entitled to payment. CONCLUSION OF LAW The criteria for additional retroactive disability benefits have not been met. 38 U.S.C. § 5111; 38 C.F.R. §§ 3.31, 3.750. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1986 to July 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal from an administrative decision issued in March 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A transcript of the hearing is of record. 1. Entitlement to the payment of additional retroactive disability benefits. In this case, the Veteran separated from active service on July 31, 2014. In a rating decision issued in December 2014, the Veteran was granted service connection for a variety of disabilities, and assigned a combined 100 percent rating, effective August 1, 2014, the day following his separation from service. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). In the notice letter accompanying the decision, the Veteran was notified that his total VA benefit payment, beginning September 1, 2014, was being withheld, in order to ensure that a double payment of disability benefits and military retirement pay did not occur. 38 C.F.R. § 3.31. In March 2015, the RO informed the Veteran that it had determined that the Veteran was entitled to a retroactive payment of $13,923.22. The RO stated that this was payment for monies withheld during the period from September 2014 through February 2015. Included with the letter the RO included an audit worksheet from the Defense Finance Accounting Service (DFAS) which reflected that for the months of September 2014, October 2014, and November 2014 VA had withheld $3,215.52 in payments and in December 2014 had withheld $3,432.26. This represented the entire disability payment due to the Veteran for those four months. The audit then showed that for the months of January 2015 and February 2015, VA had withheld $422.20. Thus, the audit worksheet concluded that the total amount of retroactive pay due for benefits withheld was $13,923.22. The Veteran appealed the March 2015 letter. In his February 2016, substantive appeal, the Veteran asserted that he was never paid retroactive benefits for the month of August 2014, citing to the fact that the DFAS audit worksheet accompanying the March 2015 letter started with September 2014. The Veteran advanced similar arguments during his February 2021 hearing. The Veteran began the hearing by arguing that the DFAS audit worksheet included with the March 2015 letter should have covered the period from August 2014 to February 2015, as opposed to beginning with September 2014. The Veteran cited to the fact that his entitlement to service connection, and therefore disability benefits, began in August 2014, not September 2014. The Veteran then argued that he didn't receive a payment for the month of August, and instead his first payment was for the month of September. As an initial matter, the Board notes that there is a difference between the term "entitlement month" when referring to service connection and the term "entitlement month" when referring to the payment of disability compensation. 38 C.F.R. §§ 3.31, 3.400. In this particular case, the Veteran's first entitlement month for the purposes of service connection is August 2014, as that is the month in which service connection for his disabilities was effectuated. However, the term "entitlement month" for payment purposes means a month in which the Veteran is entitled to VA disability benefits payments. In this case, the Veteran's first entitlement month for payment purposes is September 2014, as disability payments begin the first day of the month following the month in which service connection is effectuated. 38 C.F.R. § 3.31. Thus, in this case entitlement to service connection began on August 1, 2014 and entitlement to disability benefits payments began on September 1, 2014. The amount paid on September 1, 2014 was to compensate the Veteran for the month of August 2014. 38 U.S.C. § 5111; 38 C.F.R. § 3.31. With the difference between entitlement to service connection, and its attendant benefits, and entitlement to payment of disability benefits clarified, the Board will turn to the adequacy of the DFAS audit worksheet. The Veteran argues that the month of August 2014 should have been included in the DFAS audit of record, and the fact that it was not reflects that money he was owed for the month of August 2014 was not included in the March 2015 retroactive payment. Turning to the DFAS audit worksheet, the worksheet begins with the month of September 2014. The Veteran, while entitled to service connection and all the attendant benefits thereto in August 2014, was not entitled to disability benefit payments until September 1, 2014. The DFAS audit worksheet then lists the amount of money that was withheld and retroactively payable in each month, beginning with September 2014 and ending with February 2015. As VA disability benefits are paid in arrears, the money audited for the month of September 2014 in the DFAS audit worksheet is money that was owed to the Veteran for the month of August 2014 and payable in September 2014. The monies then listed for October 2014 are those that were payable for September 2014, and so forth. Put another way, the audit worksheet is a calculation of the benefits that were payable in each of the listed months. However, those payments were in fact for the month prior. Thus, the line for September 2014 on the audit error worksheet is in fact an audit of all benefits withheld and retroactively payable in the month of September for the month of August 2014. As such, the DFAS audit appropriately begins with the month of September 2014, the first month in which disability benefit payments were due. The DFAS audit error sheet then appears to list accurate totals for the withheld benefits for each month from September 2014 to February 2015. Further, the total figure, $13,923.22, is also an accurate sum of the benefits withheld for each of the listed months. The Veteran has not contested accuracy of the amounts listed for the months of September 2014 through February 2015. The Veteran has not submitted any evidence indicating that he was not paid the full retroactive amount listed on the audit error worksheet. Based on the foregoing, the Board finds that the calculation of the disability benefits owed and retroactively payable was correct, in that it accurately calculated the total amount of money owed for each month during the period of withholding, beginning with September 2014, the first month that payment of benefits was due. While the month of August 2014 was not included in the audit, August 2014 was not a month in which the Veteran was entitled to compensation payments. 38 U.S.C. § 5111; 38 C.F.R. § 3.31. Instead, the amount audited as payable in September 2014 is the amount due for the month of August 2014. Thus, the Veteran was in fact paid for the month of August 2014 as part of the March 2015 retroactive benefits payment. The Board notes that the Veteran has requested that the claim be remanded to obtain another audit worksheet from DFAS. However, as explained above the audit of record is correct. The audit begins with the first month that the Veteran was entitled to payment, which was September 2014. The September 2014 payment, in turn, was for the month of August 2014. The audit worksheet reflects that VA withheld the entirety of the Veteran's payments for the month of September, which again was money being paid for the month of August 2014, and incorporated that amount into the total retroactive award of $13,923.22. The inclusion of the month of August 2014 in the audit is unnecessary, as no disability payments were due to the Veteran in that particular month. 38 U.S.C. § 5111; 38 C.F.R. § 3.31. As such, the Board finds that a remand for a new audit is unnecessary. In sum, the preponderance of the evidence is against the claim that the Veteran is entitled to payment of additional retroactive benefits. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.