Citation Nr: 21041272 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-20 030A DATE: July 8, 2021 ORDER Entitlement to an earlier effective date of June 3, 1992 for the award of service connection for generalized epilepsy is granted, subject to the laws and regulations governing the payment of monetary benefits. Recoupment of severance pay in the amount of $6,154.20 was proper, and the appeal is denied. FINDINGS OF FACT 1. An April 1992 Physical Evaluation Board (PEB) report shows that the Veteran was diagnosed with recurrent non-epileptic loss of consciousness, origin undefined, incurred in service, and was found physically unfit and separated from service based on this disability. 2. The Veteran was paid disability severance pay in the amount of $6,154.20. 3. An informal claim for service connection was received from the Veteran on June 23, 2008. 4. In July 2008, VA received the Veteran's Application for Compensation and/or Pension (VA Form 21-526) for service connection for a heart condition/syncope. 5. The Veteran's service treatment records were obtained by VA on August 8, 2008, and they included a VA Form 21-526 that was signed by the Veteran on June 2, 1992, and an undated Service Member's Statement Concerning Compensation from the Veterans Administration (DA Form 664). The DA Form 664 indicated that the Veteran separated from service at Fort Stewart, Georgia, and that the VA Form 21-526e was sent to the VA RO in Atlanta, Georgia. 6. In a November 2011 decision, the Regional Office (RO) granted service connection for generalized epilepsy, effective June 23, 2008. 7. In December 2011, the Veteran was advised that his disability severance pay allowance would be recouped through the withholding of VA disability compensation until the severance pay was recovered. 8. The Veteran's June 1992 claim of service connection for recurrent non-epileptic loss of consciousness remained pending at the time he filed his second claim for this disability on June 23, 2008. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of June 3, 1992 for the award of service connection for generalized epilepsy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155 (2014); 38 C.F.R. §§ 3.102, 3.400 (2020). 2. The withholding of VA disability compensation benefits to recoup disability severance pay in the amount of $6,154.20 was proper. 10 U.S.C. § 1174; 38 C.F.R. § 3.700. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This case comes to the Board of Veterans' Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in November 2011 that granted service connection for generalized epilepsy, effective June 23, 2008. The Veteran was notified of this decision by a letter dated in December 2011, which also advised him that VA would recoup his disability severance pay in the amount of $6,154.20 from his VA disability compensation. He appealed for an earlier effective date for the award of service connection, and contended that the recoupment of severance pay was not proper. The Board previously remanded this case to the AOJ in June 2018 for additional development, and it was subsequently returned to the Board. Earlier Effective Date Unless specifically provided otherwise, the effective date of an award of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). The effective date for an award of service connection for claims received within one year after separation from service shall be the day following separation from service, or date entitlement arose; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Prior to March 24, 2015, informal claims required claimants to identify the benefit sought. See 38 C.F.R. §§ 3.1, 3.155 (2014). 1. Earlier effective date prior to June 23, 2008 for service connection for generalized epilepsy The Veteran had active service from October 1989 to June 2, 1992. In the November 2011 rating decision on appeal, a Decision Review Officer (DRO) of the RO granted service connection for generalized epilepsy, effective June 23, 2008, the date of receipt of the Veteran's informal claim, based on an October 2011 VA examination with a positive nexus opinion. The Veteran appealed for an earlier effective date. The Veteran contends that an earlier effective date of June 3, 1992 (the day after his separation from service) is warranted for the grant of service connection for generalized epilepsy because he filed an original claim for service connection for this disability at the time of his discharge from service, at the VA RO in Atlanta, Georgia. See December 2011 notice of disagreement, June 2014 substantive appeal, and written briefs from his representative dated in April 2018 and May 2021. The Veteran asserts that a few years after separation, he contacted VA to find out the status of his 1992 claim, but VA told him they had no record of it. He said he recently obtained a copy of his claims file from the Montgomery RO which included his original 1992 claim, and contended that the RO had it all along. See December 2011 notice of disagreement. He enclosed copies of a VA Form 21-526 signed on June 2, 1992 and a DA Form 664, and asserted these documents showed that his claim was to be sent to the Atlanta RO. In June 2014, he reiterated his contentions, and asserted that his first claim was filed in 1992, but VA never responded to that claim, or to his subsequent claims in 1994 and 1997. He stated that he obviously filed a claim in 1992 because there was a copy of it in his claims file, and he was discharged due to this disability and certainly would not have waited until 2008 to file a claim for it. A review of the Veteran's electronic VA claims file shows that a statement was received from the Veteran on June 23, 2008, in which he asserted that he had twice previously filed a claim for VA compensation, but had never received a rating decision and believed his claim was in limbo. The transmittal cover sheet from his representative that was submitted with his statement includes a handwritten note by an RO employee, indicating that no claim was found in the VA system. In July 2008, VA received the Veteran's Application for Compensation and/or Pension (VA Form 21-526), in which he claimed service connection for a heart condition/syncope, which were treated in service at Walter Reed and at Fort Stewart. He indicated that he previously filed a claim for VA compensation. In a February 2009 rating decision, the RO denied service connection for recurrent non-epileptic loss of consciousness (claimed as syncope/heart condition). A notice of disagreement was received from the Veteran in January 2010. In a December 2010 statement, the Veteran said that his disability had finally been diagnosed as epilepsy, and asserted that the current condition was the same one for which he was discharged from service. A review of the file reflects that in July 2008, the Montgomery RO requested the Veteran's service treatment records from the National Personnel Records Center (NPRC), and the service treatment records were first received by VA on August 8, 2008. The service treatment records contain a VA Form 21-526 signed by the Veteran on June 2, 1992, and an undated Service Member's Statement Concerning Compensation from the Veterans Administration (DA Form 664) that was also signed by the Veteran. Neither of these forms contain a date stamp showing receipt by VA. The VA Form 21-526 signed on June 2, 1992 reflects that the Veteran claimed service connection for recurrent non-epileptic loss of consciousness. The DA Form 664 indicates that the Veteran checked the box indicating that he had filed an application for VA compensation on a VA Form 21-526e. The DA Form 664 also indicated that the Veteran separated from service at Fort Stewart, Georgia, and that the VA Form 21-526e, a copy of his DD Form 214, and service treatment records, including his separation report of physical examination (SF 88), were sent to the VA RO in Atlanta, Georgia. The Veteran's service treatment records include a January 1992 report of medical examination (SF 88) performed for a Medical Board physical; the examiner listed syncope (workup in progress) as a defect/diagnosis. A March 1992 report of Medical Evaluation Board (MEB) Proceedings diagnosed recurrent loss of consciousness episodes, origin undefined, incurred in 1990 while entitled to base pay. An April 1992 report of Physical Evaluation Board (PEB) Proceedings determined that the Veteran incurred recurrent non-epileptic loss of consciousness, origin undefined, in service, and recommended a disability percentage of 20 percent. The PEB determined that he was physically unfit and recommended separation from service based on this disability, with severance pay. A July 2008 VA BIRLS Veteran Folder Management Information printout reflects that the Veteran had a Chapter 30 (education benefits) folder at the Atlanta RO in February 1994, and a claims file was established at the Montgomery RO in June 2008. The Board previously remanded this case to the AOJ in order to contact the Atlanta RO and requested that it search for any additional records pertaining to the Veteran, to include a separate claims file, if such exists. The AOJ subsequently contacted the Atlanta RO, and asked that office to search for any records or a claims file pertaining to the Veteran and have them scanned into his electronic claims file, if found. In February 2019, the Atlanta RO replied and stated that it did not have any paper records for the Veteran. Resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence reflects that he filed a formal claim for service connection for recurrent non-epileptic loss of consciousness at the time of his separation from service on June 2, 1992, which was mailed to the Atlanta RO at that time. See VA Form 21-526 signed on June 2, 1992, and contemporaneous DA Form 664. Therefore, his claim for service connection was still pending at the time he filed his second claim on June 23, 2008. As the Veteran was discharged from service on June 2, 1992, the proper effective date for the grant of service connection for generalized epilepsy is the day after his separation from service, June 3, 1992, and the appeal is granted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Severance Pay 2. Propriety of the recoupment of severance pay in the amount of $6,154.20 A VA Form 21-526 completed by the Veteran in June 1992 reflects that he reported that he had applied for or received disability severance pay from the Armed Forces. A VA Form 21-526 completed by the Veteran in July 2008 shows he reported that he had received military disability severance pay in the amount of $6,154.30. However, he now contends that he never received such severance pay and that VA's recoupment of such severance pay from his VA disability compensation was not proper. A May 1992 U.S. Army Orders form, submitted by the Veteran in January 2010, indicates that he was authorized disability severance pay in pay grade E-4, with a 20 percent rating, for two years, seven months and 23 days of active service. The Veteran's DD Form 214 shows that he was discharged from service in June 1992 by reason of physical disability with severance pay, and was paid severance pay in the amount of $6,154.20. A letter from the Defense Finance and Accounting Service (DFAS) dated in August 2008 noted that no payment of special separation pay had been found in the Veteran's pay record. In December 2019, the DFAS indicated that the Veteran was paid separation readjustment pay on January 29, 1993, in the amount of $6,154.20. Governing law and regulation provides that where the disability or disabilities found to be service-connected are the same as those upon which disability severance pay is granted, or where entitlement to disability compensation was established on or after September 15, 1981, an award of compensation will be made subject to recoupment of the disability severance pay. Where entitlement to disability compensation was established on or after September 15, 1981, a veteran may receive disability compensation for disability incurred or aggravated by service prior to the date of receipt of the severance pay, but VA must recoup from that disability compensation an amount equal to the severance pay. Where payment of severance pay was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of the severance pay. 38 C.F.R. § 3.700 (a)(3); 10 U.S.C. §§ 1174 (h)(2), 1212(d)(1)); see also VAOPGCPREC 12-96; VAOPGCPREC 14-92. Where entitlement to disability compensation was established on or after September 15, 1981, a veteran who has received separation pay may receive disability compensation for disability incurred in or aggravated by service prior to the date of receipt of separation pay subject to recoupment of the separation pay. Where payment of separation pay was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of separation pay. 38 C.F.R. § 3.700 (a)(5)(i). An April 1992 Physical Evaluation Board (PEB) Report shows that the Veteran was diagnosed with recurrent non-epileptic loss of consciousness, origin undefined, incurred in service. He was found physically unfit and separated from service based on this disability, and was paid disability severance pay in the amount of $6,154.20. In November 2011, the RO granted service connection and a 20 percent rating for generalized epilepsy, effective June 23, 2008. In December 2011, the RO notified the Veteran that his award was subject to recoupment of the severance pay ($6,154.20) received from the service department. He was informed that $243.00 would be withheld each month from December 1, 2008 until August 1, 2010, when $144.20 would be withheld, after which the full amount of his severance pay would have been recovered. The Veteran now contends that he never received any disability severance pay at separation. The Board finds that his current contention is not credible, as it is contradicted by the May 1992 U.S. Army Orders he submitted, his statements in his June 1992 and July 2008 VA Forms 21-526, his DD Form 214, and the December 2019 statement by the DFAS. The preponderance of the evidence shows that he was paid disability severance pay in the amount of $6,154.20. As the Veteran was awarded VA disability compensation for his service-connected disability and received disability severance pay for the same disability, the award of VA disability compensation is subject to recoupment of the disability severance pay. 10 U.S.C. § 1174, 38 C.F.R. § 3.700. (Continued on the next page) The withholding of VA compensation benefits to recoup disability severance pay in the amount of $6,154.20 was proper and the appeal must be denied. SARAH B. RICHMOND Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.