Citation Nr: 21030137 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-05 937 DATE: May 17, 2021 ORDER The reduction in Department of Veterans Affairs (VA) disability compensation due to concurrent receipt of military service drill pay for the period of October 1, 2015 to November 25, 2015 totaling 54 days and resulting in a debt of $528.93 was proper, and the appeal is denied. The reduction in VA disability compensation due to concurrent receipt of military service drill pay for the period of November 25, 2015 to February 6, 2016, totaling 71 days and resulting in a debt of $539.75 was proper, and the appeal is denied. REMANDED The issue of whether the Veteran timely appealed the matter of the withholding of drill pay for Fiscal Years 2009, 2010, 2011, 2012 and 2013, is referred to the Agency of Original Jurisdiction (AOJ) is remanded. FINDINGS OF FACT 1. The Veteran received military drill pay for a period of October 1, 2015 to November 25, 2015 totaling 54 days. 2. The Veteran's VA disability compensation was properly reduced for concurrent receipt of military service drill pay for a period of October 1, 2015 to November 25, 2015 which resulted in the creation of a $528.93 debt. 3. The Veteran received military drill pay for a period of November 25, 2015 to February 6, 2016, totaling 71 days. 4. The Veteran's VA disability compensation was properly reduced for concurrent receipt of military service drill pay for a period of November 25, 2015 to February 6, 2016 which resulted in the creation of a $539.75 debt. CONCLUSIONS OF LAW 1. The reduction in the VA disability compensation benefits to offset the concurrent receipt of active service drill pay for concurrent receipt of active service drill pay for a period of October 1, 2015 to November 25, 2015 totaling 71 days and resulting in a debt of $539.75 was proper. 38 U.S.C. §§ 5107, 5304(c); 38 C.F.R. §§ 3.654, 3.700. 2. The reduction in the VA disability compensation benefits to offset the concurrent receipt of active service drill pay for concurrent receipt of active service drill pay for a period of November 25, 2015 to February 6, 2016 totaling 54 days and resulting in a debt of $528.93 was proper. 38 U.S.C. §§ 5107, 5304(c); 38 C.F.R. §§ 3.654, 3.700 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 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. 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). The Veteran served in the U.S. Army from July 1984 to May 1987, from September 1990 to August 1991, from August 1997 to April 1998, from March 2003 to October 2004, and from August 2006 to August 2008. The Veteran also had periods of National Guard service including drill periods. As relevant to this appeal, the AOJ informed the Veteran in February 2015 and June 2016 that VA received information from the Defense Manpower Data Center (DMDC) that he received military drill pay concurrently while receiving VA benefits from October 1, 2015 to November 25, 2015, and from November 25, 2015 to February 6, 2016. He was provided VA Forms 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances. He was told that based on this information, VA would take steps to make a retroactive adjustment for the days he was receiving drill pay. The Veteran was told that he had the right to complete the appropriate sections of the VA Form 21-8951 and indicate to VA that he disputes the number of days listed in the VA Form 21-8951 for which he performed drill. He was provided 60 days from the date of the letter to provide that information to VA. The form provides a place for the Veteran to indicate the number of drill days served, and for him to sign this form, secure the signature of his unit commander or designee, and return the completed form to VA. In October 2016, the Veteran completed the form and agreed with the 54 days of drill for the period of October 1, 2015 to November 25, 2015. The Veteran has otherwise agreed that he drilled for the dates indicated and that the proper overpayments for that period were recouped, including during his testimony at the Board of Veterans' Appeals (Board) hearing. The Veteran was advised that the AOJ would adjust to his pay to recoup the drill pay payments. Per the notification letter, those actions were taken. In August 2016, the Regional Office (RO) informed the Veteran that a debt of $528.93 had been created for the period of October 1, 2015 to November 25, 2015 based on 54 days of drill pay received during that time period. In September 2016, the RO informed the Veteran that a debt of $539.75 had been created for the period of November 25, 2015 to February 6, 2016 based on 71 days of drill pay received during that time period. Based on a review of the record, the Board finds that the RO appropriately and properly withheld the Veteran's VA compensation benefits for period of October 1, 2015 to November 25, 2015 totaling 71 days (resulting in a debt of $539.75) and for the period of November 25, 2015 to February 6, 2016 totaling 54 days (resulting in a debt of $528.93). Accordingly, the aforementioned reduction in the VA disability compensation benefits to offset the concurrent receipt of military drill pay was proper. The appeal is therefore, denied. REASONS FOR REMAND An August 6, 2019 AOJ letter informed the Veteran that he had not timely appealed the matter of the withholding of drill pay for Fiscal Years 2009, 2010, 2011, 2012 and 2013, is referred to the Agency of Original Jurisdiction (AOJ) addressed by the AOJ in October 8, 2014. The AOJ did not accept the Veteran's Notice of Disagreement (NOD) dated October 13, 2016. The August 6, 2019 letter informed the Veteran that the determination in that letter was an appealable issue. In subsequent correspondence and at his Board hearing, the Veteran essentially indicated his disagreement and desire to appeal. As such, a statement of the case must be issued. The failure to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999). (Continued on the next page) The matter is REMANDED for the following action: The Veteran should be sent a statement of the case in accordance with 38 U.S.C. § 7105 and 38 C.F.R. §§ 19.29, 19.30. If the Veteran perfects the appeal by submitting a timely and adequate substantive appeal on this issue, then the claim should be returned to the Board. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.