Citation Nr: 22069578 Decision Date: 12/17/22 Archive Date: 12/17/22 DOCKET NO. 20-15 851A DATE: December 17, 2022 ORDER Entitlement to concurrent retired and disability pay (CRDP) for the period from January 1, 2004, to April 30, 2016, is granted. FINDINGS OF FACT 1. The Veteran was determined to be permanently unfit for duty due to physical disability incurred while entitled to receive basic pay and retired from active service in November 1977. 2. As of November 1977, the Veteran was in receipt of a 100 percent disability rating for the service-connected arteriosclerotic heart disease with myocardial infarction residuals. 3. The Veteran was not informed of the change of law allowing for payment of both retired pay and compensation is available pursuant to 10 U.S.C. § 1414, effective January 1, 2004. 4. The Veteran's April 2016 Election of Compensation in Lieu of Retired Pay or Waiver of Retired Pay to Secure Compensation from Department of Veterans Affairs, VA Form 21 651, was received by VA on April 21, 2016. CONCLUSION OF LAW The criteria for payment of CRDP for the period from January 1, 2004, through April 30, 2016, have been met. 10 U.S.C. § 1414; 38 U.S.C. §§ 5304, 5305; 38 C.F.R. §§ 3.700, 3.750. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1972 to November 1977. He died in January 2018. The Veteran's surviving spouse has been substituted as the Appellant in this appeal. CRDP The Appellant contends that the Veteran was not awarded the correct amount of CRDP and should be awarded such benefits retroactively to the January 1, 2004, effective date of the liberalizing law and regulations. The Veteran asserted that he had not been informed of the change in the law. Generally, concurrent payment of military retirement compensation and VA disability compensation may not be awarded to a veteran absent a waiver. 38 U.S.C. §§ 5304, 5305; 38 C.F.R. § 3.750. Effective January 1, 2004, the CRDP program allows certain veterans to receive some measure of concurrent payments for both retired military pay and VA disability compensation if they retired due to a disability and have been awarded a minimum 50 percent VA disability rating. 10 U.S.C. § 1414(b)(2). CRDP restores some or all of the military retired pay that has been deducted due to receipt of VA service-connected disability compensation. A veteran who has filed a waiver of military retired pay under this section has elected to receive disability compensation. A veteran may reelect between benefits covered by this section at any time by submitting a written, signed statement to VA or to the federal agency that pays the veteran's military retired pay. 38 C.F.R. § 3.750(d)(1). An election filed within one year from the date of notification of VA entitlement will be considered as timely filed for effective date purposes. In initial determinations, elections may be applied retroactively if the claimant was not advised of his right of election and its effect. 38 C.F.R. § 3.750(d)(2). In November 1977, the Veteran was determined to be permanently unfit for duty due to physical disability incurred while entitled to receive basic pay and retired from active service in November 1977. Service connection for arteriosclerotic heart disease with myocardial infarction residuals rated as 100 percent disabling, became effective as of November 16, 1977. In ran's April 2016 Election of Compensation in Lieu of Retired Pay or Waiver of Retired Pay to Secure Compensation from Department of Veterans Affairs, VA Form 21 651, was received by VA on April 21, 2016. In September 2016, the Veteran submitted a Veteran's Supplemental Claim for Compensation, VA Form 21-526b, seeking an "earlier effective [date] for VA pay back to the change of the law in 2004." He stated that the CRDP program had been amended in 2004, but and he "was not notified." The Veteran requested "full back pay to the date [he] became eligible for CRDP." In April 2017, the Veteran was paid retroactive compensation payment in the amount of $8,687.60 for the period from May 1, 2016, through August 31, 2016. The Veteran asserted that he had not been notified of the federal legislation which amended the CRDP program, effective as of January 1, 2004. The record contains no evidence that the Veteran was notified of the amended legislation; his right of election; or its effect. Therefore, the Board of Veterans' Appeals (Board) finds that the Veteran's April 2016 Election of Compensation in Lieu of Retired Pay or Waiver of Retired Pay to Secure Compensation from Department of Veterans Affairs, VA Form 21 651 should be effectuated retroactively to January 1, 2004, as the Veteran was not advised of his right of election and its effect. 38 C.F.R. § 3.750(d)(2). J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale 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.