Citation Nr: 22017654 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-46 362 DATE: March 25, 2022 REMANDED Entitlement to additional retroactive Department of Veterans Affairs (VA) disability compensation in excess of $1,446.62 from April 2017 to January 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a June 2018 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board hearing in January 2022; however, he withdrew his request for the hearing in December 2021. Upon review, the Board finds that additional development is needed prior to adjudication of the issue on appeal. The Veteran has claimed that he is entitled to additional retroactive VA disability compensation in excess of $1,446.62 for the period from April 2017 to January 2018. The appeal stems from the implementation of a February 2018 rating decision, which granted service connection for diabetic nephropathy and bilateral cataracts, arcus senilis, macular degeneration, and peripheral degeneration, effective March 24, 2017. That grant increased the Veteran's combined disability rating to 100 percent as of that date. In June 2018, the RO notified the Veteran that he was due $1,446.62 in retroactive compensation for the increased award for the period from April 2017 to January 2018. The decision was based on a June 2018 Audit Error Worksheet (AEW) provided by the Defense Finance and Accounting Service (DFAS). The AEW only included the months of April 2017 and January 2018. It showed that the Veteran was in receipt of Combat-Related Special Compensation (CRSC) at a 60 percent rate in April 2017 and was due $239.63 in retroactive pay from VA with a total of $1,183.40 withheld by VA. The AEW also indicated that he was in receipt of Concurrent Retirement and Disability Payment (CRDP) at 100 percent in January 2018 and was due the entire $1,206.99 withheld by VA. VA withheld the Veteran's disability compensation because he was also in receipt of military retirement pay. There is a general prohibition on the concurrent payment of military retirement pay and VA disability compensation pay without a waiver. See 38 U.S.C. § 5304; see also 38 U.S.C. § 5305; 38 C.F.R. § 3.750. Legislation, however, has been enacted to allow certain Veterans to receive some measure of concurrent payments for both their retired military pay and their VA disability compensations. The CRSC program was established to allow receipt of partial or full retired military pay and VA disability compensation to eligible military retirees with combat-related disabilities. Basic eligibility for CRSC is met if the veteran had completed 20 years of service and had a qualifying combat-related disability. 10 U.S.C. § 1413a. The CRSC program is not a VA program. Id. The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, precedent opinions of the General Counsel of the VA, and precedential decisions to courts of superior jurisdiction. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.104. The CRDP is a program that is available to military retirees who served a minimum of 20 years creditable service, including service in the National Guard and Reserves. CRDP restores some or all of the military retired pay that was deducted due to receipt of VA service-connected disability compensation. Retirees must be rated 50 percent or more disabled by VA. Retirees are not required to apply for this benefit; enrollment is automatic. After December 31, 2004, such individuals are generally eligible for full payment of their military retired pay and VA disability compensation with some limitations. See 10 U.S.C. § 1414. Importantly, pursuant to 38 U.S.C. § 1414(d), "a person who is a qualified retiree under this section and is also an eligible combat-related disabled uniformed services retiree under section 1413a of this title may receive special compensation in accordance with that section or retired pay in accordance with this section, but not both." The statute states that a veteran "shall have the right to make an election to change from receipt of special compensation in accordance with section 1413a of this title to receipt of retired pay in accordance with this section, or the reverse, as the case may be." This election comes during the "open season" when a veteran can elect either program or benefit. Id. In this case, the Veteran has claimed that he is entitled to the full amount of compensation withheld by VA from April 2017 to January 2018. In support of his argument, he provided an audit that he requested from DFAS in August 2018. The audit provided by the Veteran shows he had a VA award of $3,078.11 from April 2017 to November 2017 and an award of $3139.87 in December 2017 and January 2018. However, from April 2017 to November 2017 and in December 2017 and January 2018, VA withheld $1,183.40 and $1,206.99 from the payment, respectively. The audit also shows that his "CRSC/CRDP due" from April 2017 to November 2017 was $5,402.27, and in December 2017, it was $5,509.52. However, in January 2018, the "CRSC/CRDP due" amount rose to $7,466.67, which resulted in VA paying the entire amount withheld. Since February 2018, VA did not withhold any portion of his payments, and the Veteran received the full amount of military retirement pay and VA disability compensation. Based on the June 2018 AEW and the August 2018 audit provided by the Veteran, the record appears to reflect that the Veteran was in receipt of CRSC until January 2018, when he elected to receive CRDP. Notably, CRSC only compensates for "combat-related" disabilities, and thus, the increased award may not have changed his CRSC entitlement. Further, a May 2011 CRSC/CRDP Election Archive indicates that the Veteran had elected CRSC at least at that time, and an October 2017 AEW shows that he was receiving dual compensation under CRSC until at least December 2011. The Veteran was eligible for CRDP at these times, and thus, it appears that he elected to receive CRSC in lieu of CRDP, which would change the amount of the dual compensation. However, as noted above, CRSC is not a VA program, and the Board does not determine the basis of his CRSC award. Although it appears the Veteran changed his election, which resulted in the VA withholding from April 2017 to January 2018, the record is not clear. Specifically, the June 2018 AEW only included the two months of April 2017 and January 2018, and thus, the months of May 2017 to December 2017 are not explicitly considered. Moreover, the audit provided by the Veteran does not explicitly state which program he was receiving compensation under for those months; it merely lists the amount that he was owed. Thus, without this information, the Board cannot evaluate the accuracy of the withholdings for the months in question. Accordingly, a remand is necessary in order to obtain an AEW from DFAS for each month from April 2017 to January 2018, which clearly shows the program that the Veteran elected and the amounts owed to him. The matter is REMANDED for the following action: The agency of original jurisdiction (AOJ) should request an audit error worksheet for the Veteran's entitlement to CRSC/CRDP for each month from April 2017 through January 2018 showing the program that the Veteran elected and amounts owed to him. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.