Citation Nr: 24014257 Decision Date: 04/03/24 Archive Date: 04/03/24 DOCKET NO. 19-29 029 DATE: April 3, 2024 ORDER VA correctly calculated and paid retroactive compensation benefits to the Veteran and the appeal is denied. FINDING OF FACT The retroactive VA compensation payment in the amount of $6,146.00 was proper, and the Veteran is not entitled to additional retroactive compensation payment. CONCLUSION OF LAW The retroactive VA compensation payment in the amount of $6,146.00 for the period from April 2013 through May 2013 was proper. 10 U.S.C. §§ 1413a, 1414; 38 U.S.C. §§ 5304, 5305; 38 C.F.R. §§ 3.700, 3.750, 3.751. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to February 2013. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2016 decision issued by the Agency of Original Jurisdiction (AOJ) that determined that the Veteran was entitled to a retroactive Concurrent Retirement and Disability Payment (CRDP) compensation payment of $6,146.00 for the period from April 1, 2013, through May 31, 2013. In June 2023, the Board remanded this issue on appeal for further development of the record. Specifically, the Board instructed the AOJ to provide a detailed review of the Veteran's compensation award from March 1, 2013, to December 31, 2013; obtain a current Defense Finance and Accounting Service (DFAS) Audit Error Worksheet (AEW) for the period March 1, 2013, through December 31, 2013; and perform an audit of the Veteran's VA compensation benefits for the period from March 1, 2013, through December 31, 2013. The requested development has been completed and the case has been returned for appellate disposition. 1. Entitlement to additional retroactive VA compensation benefits for June 2013 The Veteran contends that he is entitled to retroactive VA compensation payments for June 2013. Because VA compensation benefits were not withheld for the period beginning June 2013, the Board finds that the Veteran is not entitled to additional retroactive VA compensation payment, and the retroactive payment provided was proper. In general, a veteran may not receive military retired pay and VA disability compensation concurrently. See 38 U.S.C. §§ 5304, 5305. Where a veteran is eligible for both military retired pay and disability compensation, a waiver of military retired pay is necessary to receive disability compensation. 38 C.F.R. § 3.751. If a veteran's VA disability compensation is less than his retired pay, he will receive his full VA disability pay and his service department will reduce his military retired pay by the amount of his disability compensation. If VA disability compensation is greater than his retired pay, then the veteran will only receive VA disability compensation. However, the Defense Authorization Acts of 2003 and 2004 established two programs which allow for the concurrent payment of military retired pay and VA disability compensation. If a veteran is eligible for one of the two programs, he may receive payment of both his retired pay and VA compensation. The two programs are known as Combat Related Special Compensation (CRSC) and Concurrent Retirement and Disability Payment (CRDP). Eligibility for CRSC requires that a veteran must have completed 20 years of service and have a qualifying combat-related disability. A veteran must apply with his own service department, and the service department makes the determination as to whether the Veteran's disability/disabilities is/are considered combat-related thereby making the Veteran eligible for CRSC. 10 U.S.C. § 1413a. VA does not make such determination. Eligibility for CRDP requires that a veteran must have served a minimum of 20 years of creditable service, including service in the National Guard and Reserves and have a combined VA disability rating of at least 50 percent. 10 U.S.C. § 1414. Unlike the CRSC, a veteran is not required to apply for this benefit; enrollment is automatic. However, as with the CRSC, the veteran's service department makes the determination regarding eligibility under the CRDP. In a May 2013 rating decision, service connection was established for posttraumatic stress disorder (PTSD), obstructive sleep apnea, headaches, left ankle longitudinal split tear of the peroneus bravis and tenosynovitis of the peroneal tendon sheath, multilevel spondylosis and degenerative joint disease, right shoulder glenohumeral osteoarthritis, cervical spine degenerative joint disease, gastroesophageal reflux disease (GERD), hypertension, left knee osteoarthritis, left shoulder glenohumeral osteoarthritis, right knee osteoarthritis, tinnitus, left wrist osteoarthritis, right cheek scar, nephrolithiasis and right urethral stricture, right shin splint, left shin splint, erectile dysfunction, bilateral plantar fasciitis, bilateral hands osteoarthritis, laryngeal vocal cord neoplasm, right lateral epicondylitis, seborrheic dermatitis, hernia repair scar, left ankle scar, right hip strain, and left hip strain. The combined rating for his service-connected disabilities was 100 percent, effective March 1, 2013. In addition, entitlement to Special Monthly Compensation (SMC) based on Loss of Use of a creative organ was granted, effective March 1, 2013. Because the Veteran was not allowed to receive full military retired pay and full VA compensation at the same time, the May 2013 notification letter reflects that his VA compensation benefits were withheld from April 1, 2013, through May 31, 2013, to prevent overpayment. He received his full VA compensation benefits beginning June 1, 2013. He was notified that he may be eligible for full or partial concurrent receipt of VA compensation and military retired pay under the CRSC and CRDP programs. He was advised that his retired pay center (RPC) had been notified of this award and if the RPC determined that withholdings from his VA compensation should be retroactively adjusted due to CRSC/CRDP eligibility, VA would adjust his VA compensation accordingly. A July 2013 Audit Error Worksheet (AEW) reflects that the Veteran was eligible for the CRDP program from April 2013 through May 2013. Accordingly, he was owed retroactive payment of VA compensation withheld during that period. The January 2016 notification letter reiterates that the Veteran was entitled to a retroactive compensation payment of $6,146.00 for VA compensation withheld from April 1, 2013, through May 31, 2013. The Veteran contends that he is entitled to retroactive payment of VA compensation withheld during June 2013. However, the May 2013 notification letter reflects that the withholding of VA compensation benefits ended in May 2013. The Veteran received full VA compensation benefits beginning June 1, 2013 (i.e., VA compensation benefits were not withheld for the period beginning June 1, 2013). The September 2023 audit confirms that VA compensation was only withheld for the period from April 1, 2013, through May 31, 2013; the Veteran received full VA compensation benefits beginning June 1, 2013. The Veteran was determined eligible for the CRDP program from April 1, 2013. VA benefits withheld to prevent overpayment of VA compensation due to his receipt of military retired pay was retroactively paid from April 1, 2013, through May 31, 2013. Because no VA compensation benefits were withheld beginning June 1, 2013, additional retroactive VA compensation benefits payment is not warranted. (CONTINUED ON THE NEXT PAGE) The Veteran was properly paid retroactive VA compensation benefits of $6,146.00 for the period from April 1, 2013, through May 31, 2013. VA compensation benefits were not withheld beginning June 1, 2013 and an additional retroactive VA compensation payment is not warranted. Accordingly, this claim on appeal is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.