Citation Nr: 21030228 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-37 333 DATE: May 18, 2021 REMANDED Propriety of the reduction in Department of Veterans Affairs (VA) disability compensation for the recouping of 16 days of military drill pay for Fiscal Year (FY) 2009 is remanded. Propriety of the reduction in VA disability compensation for the recouping of 72 days of military drill pay for FY 2010 is remanded. Propriety of the reduction in VA disability compensation for the recouping of 26 days of military drill pay for FY 2011 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2003 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a VA Regional Office (RO). The three issues listed above were originally combined in the RO's rating decision. However, the issues have been separated for the purposes of clarity. The Veteran was scheduled for a Board hearing before a Veterans Law Judge in September 2020; however, prior to the hearing, the Veteran cancelled his hearing request in September 2020. 1. Propriety of the reduction in VA disability compensation for the recouping of 16 days of military drill pay for FY 2009. 2. Propriety of the reduction in VA disability compensation for the recouping of 72 days of military drill pay for FY 2010. 3. Propriety of the reduction in VA disability compensation for the recouping of 26 days of military drill pay for FY 2011. The Veteran contends that the reduction in VA disability compensation in order to recoup 16 days of drill pay in FY 2009, 72 days of drill pay in FY 2010, and 26 days of drill pay in FY 2011, is in error. Specifically, the Veteran contends that he was not paid for his drills in July 2010 or July 2011, and that he did not receive his full payment in December 2009 or August 2010. He also reported that he did not receive his full VA compensation payments, as relevant to the instant appeal, in March through May 2010, and in August 2011. After a review of the record, a remand is necessary to ensure the record is complete and obtain correct accounting. 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. In a June 2010 letter, the RO notified the Veteran that based on information received from the Defense Manpower Data Center (DMDC), he was reported to have completed 16 drill days in 2009 and 72 drill days in 2010. Then, in a May 2012 letter, the RO notified him again that based on information received from the DMDC, he was reported to have completed 26 drill days in 2011. The letters informed the Veteran that he could elect to waive VA disability compensation in lieu of active service pay, and afforded him an opportunity to dispute the number of drill days completed. Thereafter, in a July 2015 letter, the RO notified the Veteran of a proposal to retroactively adjust the Veteran's compensation benefits for FYs 2009, 2010, and 2011 based on a total of 114 drill days completed during that time, based on the information received, as noted above, from the DMDC. The Veteran responded in August 2015, stating he had not received his full payments for the time periods in question, and that the RO had already withheld the disability compensation for FYs 2010 and 2011. Nonetheless, in a December 2015 letter, the RO reduced the VA disability compensation for FYs 2009, 2010, and 2011 to recoup the 114 days of drill pay. Such action resulted in an overpayment confirmed by the VA Debt Management Center. Parenthetically, the RO was originally going to withhold the VA disability compensation from October 1, 2015 to December 29, 2015. However, in order to follow correct procedure and prospectively withhold such payment, the withholding actually occurred from March 1, 2016 to June 25, 2016. The information received from the DMDC is not of record. This information formed the basis of the RO's decision and should have been associated with the record in order to provide the Veteran with the complete information needed to pursue his claim, as well as for the Board to analyze the merits of the appeal properly. Likewise, there is no information of record from a different source which confirms the Veteran's participation in the drill days noted, such as personnel records, a service record, or a Military Master Pay Account (MMPA). Thus, these service records should also be obtained on remand if possible. Further, implicit in any analysis of the validity or creation of the debt is an accurate accounting. As above, the Veteran's claims file currently does not contain any reviewable accounting or documentation of exactly how the Veteran's alleged overpayment was actually calculated, beyond that $974 would be withheld from his disability compensation from March 1, 2016 to May 29, 2016, at which time $1,064 would be withheld until June 25, 2016. Additionally, the Veteran reported that he did not receive payment for drills that occurred in July 2010 or July 2011, and that he did not receive his full payment for drills in December 2009 or August 2010. Without knowledge of which drill pay days were counted, the Veteran cannot meaningfully participate in an appeal. Furthermore, the actual receipt of active duty pay is necessary for the purposes of the VA disability withholding. Accordingly, if the Veteran was not paid for his drill days, then a withholding would be improper. Therefore, the RO should obtain pay records from the Defense Finance and Accounting Service (DFAS), the Defense Joint Military Pay System Reserve Component (DJMS RC), or any other appropriate agency, for FY 2009, FY 2010, and FY 2011, to confirm whether the Veteran was paid for any drill days. Consequently, the AOJ should confirm the Veteran's dates of drill training and to verify his drill pay as well as other VA compensation benefits provided during FY 2009, FY 2010, and FY 2011, and confirm whether the Veteran was paid for such drill days, and so inform the Veteran when readjudicating the matter of the validity of any debt created by receipt of drill pay. The matters are REMANDED for the following action: 1. Obtain verification of the Veteran's FY 2009, FY 2010, and FY 2011 drill days and drill pay from appropriate sources, to include the DMDC, the personnel officer in the Veteran's unit, obtaining information from the Veteran's MMPA, and/or obtaining verification of all drill pay for FY 2009, FY 2010, and FY 2011 from the DFAS, as necessary. All responses should be clearly documented in the electronic claims file. 2. Obtain the Veteran's Leave and Earnings Statements (LES) for FY 2009, FY 2010, and FY 2011 from the DFAS, DJMS RC, or any other appropriate government document repository. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 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.