Citation Nr: 21030998 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-47 047 DATE: May 20, 2021 ORDER The $381.12 reduction in Department of Veterans Affairs (VA) disability compensation payments due to concurrent receipt of 6 days of military service drill pay in Fiscal Year (FY) 2015 was proper; the appeal is denied. FINDINGS OF FACT 1. The Veteran received military drill pay for a period of 6 days in FY 2015. 2. The Veteran's concurrently received VA disability compensation during those 6 days in FY 2015. CONCLUSION OF LAW The $381.12 reduction in the Veteran's VA disability compensation benefits to offset the concurrent receipt of military service drill pay for 6 days in FY 2015 was proper. 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 in active service in the United States Marine Corps from December 1999 to May 2002, and in the United States Army from October 2008 to May 2010, from March 2014 to August 2014, and from June 2015 to January 2016. He had additional service in the United States Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a March 2017 administrative decision of the VA Regional Office (RO) to reduce the Veteran's VA compensation due to receipt of drill pay at the rate payable during FY 2015 for 6 days. In August 2017, the Veteran submitted a Notice of Disagreement (NOD) form. The Board observes the Veteran's handwritten statements on this form discuss drill days in FY 2016. As this was received within one year of the March 2017 decision related to FY 2015, the RO construed it as an NOD with regard to the $381.12 reduction in benefits for 6 drill days in FY 2015 and issued a statement of the case (SOC) on that matter in August 2018. The Veteran responded with a VA Form 9 later in August 2018. As for FY 2016, the record shows the Veteran was reimbursed for any deduction made related to FY 2016 in July 2019. Thus, there is no matter on appeal before the Board related to FY 2016. The Veteran provided hearing testimony before the undersigned in January 2021 and a transcript of that hearing is within the claims file. At the time of this hearing, it was unclear whether appeals related to FY 2011, FY 2012, and FY 2013 debts were before the Board. A review of the file reveals that an SOC related to a $1,389.05 debt for FY 2011, FY 2012, and FY 2013 was sent to the Veteran in October 2018, which was after the August 2018 VA Form 9 was submitted for the FY 2015 appeal. Thus, that VA Form 9 cannot be accepted as perfecting the appeal related to FY 2011, FY 2012, and FY 2013. Further review of the claims file reveals that no VA Form 9 was submitted in response to the October 2018 SOC. The letter accompanying that SOC included instructions indicating the VA Form 9 was needed to perfect the appeal. A VA Form 9 was also enclosed with that communication. The Veteran, however, did not respond. Thus, the appeal related to FY 2011, FY 2012 and FY 2013 was not perfected and, therefore, is not within the Board's jurisdiction. The decision herein is limited to the FY 2015 debt. 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). In June 2016, the RO informed the Veteran that VA received information from the Defense Manpower Data Center (DMDC) indicating he received military drill pay for 162 days concurrently while receiving VA benefits in FY 2015. He was provided a VA Form 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. He 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. On his August 2016 NOD, the Veteran wrote "I did not drill" next to FY 2015. With this form, he submitted a VA Form 21-8951 with an indication that he had 6 drill days in FY 2015, rather than 162. This form was signed by the Veteran and by his unit commander. The RO subsequently took action to reduce the Veteran's benefits by the amount equal to 6 drill days in FY 2015. The Veteran was notified of this action in March 2017 and the $381.12 debt at issue resulted. Based on a review of the record, the Board finds that the RO appropriately withheld the Veteran's VA compensation benefits for 6 drill days in FY 2015. The Veteran signed the form indicating 6 days was appropriate, as did his unit commander. Accordingly, the reduction in the VA disability compensation benefits to offset the concurrent receipt of 6 days of military drill pay was proper. The appeal is therefore, denied. The Board recognizes the Veteran also requested a waiver of this overpayment. An August 2018 Decision on Waiver of Indebtedness was issued, and the Veteran has not since submitted an NOD with that decision. The waiver matter is, therefore, not before the Board. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.