Citation Nr: 22013303 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-39 157 DATE: March 9, 2022 ORDER The reduction in Department of Veterans Affairs (VA) disability compensation due to concurrent receipt of military service drill pay for Fiscal Year (FY) 2012 was proper, and the appeal is denied. The issue of waiver of a reduction in VA compensation benefits due to concurrent receipt of drill pay in FY 2012 is moot as no debt was owed; the appeal is dismissed. FINDINGS OF FACT 1. The Veteran received military drill pay for a period of 12 days in FY 2012. 2. The Veteran's VA disability compensation was properly reduced for concurrent receipt of military service drill pay for a period of 12 days in FY 2012. 3. The Veteran appealed the reduction due to financial hardship and requested a waiver of the reduction. 4. No debt had been created due to concurrent receipt of VA compensation benefits and drill pay in FY 2012. CONCLUSIONS OF LAW 1. The reduction in the VA disability compensation benefits to offset the concurrent receipt of active service drill pay for a period of 12 days in FY 2012 was proper. 38 U.S.C. §§ 5107, 5304(c); 38 C.F.R. §§ 3.654, 3.700. 2. The issue of waiver of a reduction in VA compensation benefits due to concurrent receipt of drill pay in Fiscal Year 2012 is moot as no debt is owed. 38 U.S.C. § 7105; 38 C.F.R. §§ 1.962, 1.963, 1.965, 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from August 1973 to June 1982, from May 2006 to July 2007, and from January 2009 to February 2010, with subsequent periods of Reserve service, including drill periods. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 notification letter, reducing the Veteran's VA compensation benefits to prevent an overpayment due to receipt of drill pay. It was most recently before the Board in November 2021, when it was remanded for further development. Initially, the Board notes that the appeal was previously characterized as entitlement to waiver of a reduction in VA compensation benefits due to concurrent receipt of drill pay in FY 2012. The Veteran has not stated that the reduction was improper, but rather that it causes financial hardship. However, the Board notes that the effect is the same in that he is appealing the reduction. Therefore, to ensure that the Veteran's contentions are adequately addressed, the Board will decide both the issues of the propriety of the reduction and entitlement to a waiver, as indicated on the first page of this decision. 1. Whether the reduction in the VA disability compensation benefits to offset the concurrent receipt of active service drill pay for a period of 12 days in FY 2012 was proper 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). As noted, the Veteran's service includes Reserve service, including drill periods. In May 2015, the AOJ informed the Veteran that VA received information from the Defense Manpower Data Center (DMDC) that he received military drill pay concurrently while receiving VA benefits. 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 wase receiving drill pay, in this case, 12 days during FY 2012. 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. In June 2015, the Veteran returned his VA Form 21-8951, indicating that he elected to waive his VA benefits for the days indicated on the front of the form to retain his training pay. He also submitted a statement requesting that the reduction not be effectuated due to financial need. In the November 2015 decision at issue, the RO informed the Veteran that it had taken the action proposed in May 2015, and that his VA compensation benefits would be reduced because he also received drill pay for Fiscal Year 2012. Based on a review of the record, the Board finds that the RO appropriately withheld the Veteran's VA compensation benefits for 12 drill days in FY 2012. While the Board acknowledges the Veteran's statements that the reduction in his VA compensation benefits caused financial hardship, the law is clear that he is not entitled to receive concurrent VA disability compensation benefits and active service pay, nor does it provide an exception for reduction in the case of financial hardship. Accordingly, the reduction in the VA disability compensation benefits to offset the concurrent receipt of military drill pay was proper. The appeal is therefore denied. 2. Entitlement to waiver of a reduction in VA compensation benefits due to concurrent receipt of drill pay in FY 2012 To the extent that the Veteran is contending he is entitled to a waiver, the Board finds this issue is moot. In a November 2015 notice of disagreement (NOD), the Veteran stated repayment was a financial hardship as he was on a fixed income. He reiterated the issue of hardship in his July 2018 substantive appeal. In a December 2021 memorandum, the Committee on Waivers and Compromises (Committee) stated it had thoroughly reviewed the Veteran's case, and while the Veteran had been notified of a future withholding of his VA benefits due to concurrent receipt of military drill pay in Fiscal Year 2012, no debt had been created. The Committee stated that because there was no debt, it therefore could not consider a waiver request. The Board acknowledges that the Veteran has requested a waiver of the withholding itself, and stated that it causes financial hardship. However, the statutes refer to waivers of indebtedness, and here, the withholding has prevented the creation of a debt. 38 U.S.C. § 5302; 38 C.F.R. § 1.965. Accordingly, any further consideration of the Veteran's waiver request is moot as no debt is owed; the appeal is dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 20.104. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dean, 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.