Citation Nr: 21039711 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 19-17 145 DATE: July 1, 2021 REMANDED Entitlement to the $698.31 balance of Concurrent Retirement and Disability Pay (CRDP) is remanded. REASONS FOR REMAND The Veteran, a military retiree, had active duty from June 1978 to June 1982, from June 1982 to February 1985, and from February 1985 to August 1998. This matter is before the Board of Veterans' Appeals (Board) on his appeal of the June 2018 notice award issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The June 2018 notice informed the Veteran of his entitlement to $2,122.32 CRDP payment, as well as of an audit error worksheet (AEW), indicating that $698.31 of that CRDP payment was already disbursed to the Veteran by the Defense Finance Accounting Service (DFAS), an agency within the Department of Defense (DOD) responsible for all of DOD's financial transactions. Because the Veteran's CRDP payment disbursed by VA is required to be reduced by the amount disbursed to him by DOD, VA disbursed only $1,424.01 to the Veteran and, seemingly, remitted $698.31 to DFAS. In September 2018, the Veteran filed a Notice of Disagreement and a lay statement asserting that he was never disbursed $698.31 by DFAS, and that his telephonic communications with DFAS officials indicated to the Veteran that DFAS never disbursed $698.31 to him since DFAS had no record of such a disbursement. In sync with the Veteran's assertions, a January 2019 notice letter issued by the RO included an alternative AEW and indicated that the amount of $689.31 remained due to the Veteran and would be disbursed to him by VA later in January 2019. However, in December 2018, that is, just three weeks prior to the issuance of the January 2019 notice letter, the RO issued the Veteran a Statement of the Case (SOC) maintaining, without any elaboration, that the $689.31 amount was properly withheld by VA from his CRDP payment because that amount had already been disbursed to the Veteran by DFAS. No Supplementary SOC (SSOC) was issued to the Veteran after the issuance of the January 2009 notice letter promising VA's disbursement of the outstanding $689.31 amount. The Veteran's June 2020 email exchange with an RO official shows that the issue of the outstanding $689.31 amount has remained unresolved, and the Veteran's numerous requests to VA to produce any proof of the DFAS payment of the $689.31 amount had fallen on deaf ears, thus leaving the Veteran with the task to establish a negative (i.e., that neither by a negotiable instrument, nor by a wire transfer, nor by an offset or a combined payment DFAS ever paid him the $689.31 amount that VA deducted from his $2,122.32 CRDP payment). The foregoing cannot be harmonized with the Veteran's due process rights. Indeed, as one court observed, Where, as here, receipt of a [payment] is a contested issue, the individual recipient is forced to prove a negative. The law has long recognized that such an evidentiary feat is next to impossible. See Piedmont and Arlington Life-Ins. Co. v. Ewing, 92 U.S. 377, 380 (1875) ("While it may be easy enough to prove the affirmative of [a] question[], it is next to impossible to prove the negative"). Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314, 322 (3d Cir. 2014). In light of the ambiguities in the record, the Board is currently not in the position to adjudicate the Veteran's claim. Thus, while the Board regrets an additional delay, a remand for further development of the record is required. The matters are REMANDED for the following action: 1. Contact DFAS with a request to provide proof of disbursement of $689.31 to the Veteran in connection with his CRDP payment or, alternatively, in connection with any other matter with regard to which DFAS first executed a payment of $689.31 to the Veteran and then notified VA that VA had to remit $689.31 to DFAS. In the event of the latter, request DFAS to provide both a clarification with regard to which matter such remittance was executed. DFAS' proof of disbursement of $689.31 to the Veteran should be in the form of either a copy of the cancelled check that DFAS issued to the Veteran, and the Veteran signed and deposited on his account at a financial institution duly licensed to perform such transactions or, in alternative, in the form of a document establishing that the $689.31 amount was directly deposited by DFAS to the Veteran's bank account. DFAS' affirmative statement that no such disbursement took place could be substituted by DFAS' failure to provide a proof of disbursement in response to VA's repeated requests for such information. DFAS' response, if any, and VA's requests for information should be associated with the claims file. 2. Upon completing the foregoing and all other developments deemed necessary, adjudicate the issue of whether VA owes the Veteran $689.31 as a result of underpayment of his CRDP payment. Critical here, such an adjudication cannot be limited to a mere statement that the Veteran was disbursed $689.31 by DFAS and, therefore, the $689.31 amount was deducted by VA from his CRDP payment. Rather, the adjudication should specify the date, modality, and bases of DFAS' disbursement of $689.31 to the Veteran, as well as the date and bases of VA's remittance of $689.31 to DFAS. 3. In the event the Veteran's challenge to the $689.31 underpayment of his CRDP payment remains denied, a Supplemental SOC (SSOC) should be furnished to the Veteran and his representative. The SSOC should include the information detailed in Step 2, as well as the record provided by DFAS, as detailed in Step 1. The Veteran and his representative should be afforded a reasonable opportunity to respond. 4. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). While the law requires that all claims remanded by the Board for additional development must be handled in an expeditious manner, 38 U.S.C. §§ 5109B, 7112, in light of the COVID-19 public health measures undertaken by the Federal government, the U.S. States, and municipalities, reasonable accommodations should be made to comply with these measures so as to ensure the safety of all parties affected by this Remand order. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, 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.