Citation Nr: 0005915 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 94-02 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the action taken to terminate the veteran's disability compensation from May 1989 to May 1990 was correct. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty in the Armed Forces from November 1980 to May 1987, and from May 1989 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1993 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which terminated the veteran's VA compensation benefits, effective from May 9, 1989 to May 1, 1990, while the veteran was on active duty receiving active service pay, thereby creating a $2,350 overpayment of VA compensation benefits. The veteran appealed. In September 1995, the veteran testified at a personal hearing held at the RO before the undersigned Member of the Board. Following the hearing, the Board remanded the case to the RO for further development and adjudication. The RO found that the termination of benefits for the period of time at issue was appropriate and the case has been returned to the Board for appellate review. In the instant case, the veteran has appealed the VA's position that he has an overpayment in VA benefits in the amount of $2,350 because he received such benefits while he was on active duty receiving active service pay and, if there is an overpayment, how the VA determined the amount of that overpayment. He is not challenging either the resumption of his VA compensation or that his current disability benefits are being withheld because he received severance pay upon separation from active duty in March 1992. The issue before the Board is whether the action taken by the RO to terminate the veteran's VA compensation benefits while he was on active duty receiving active service pay is correct. FINDINGS OF FACT 1. The veteran initially served on active duty from November 1980 to May 1987. 2. In June 1987, the RO granted the veteran entitlement to VA compensation benefits, effective from May 1987. 3. The veteran reentered active duty service on May 9, 1989 and served until March 12, 1992. 4. The RO terminated the veteran's VA compensation benefits, effective from May 9, 1989. CONCLUSION OF LAW Termination of the veteran's VA compensation benefits effective May 9, 1989, is appropriate. 38 U.S.C.A. §§ 5304(a)(c), 5305 (West 1991); 38 C.F.R. §§ 3.700(a)(1), 3.750(c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board is satisfied that all relevant facts have been properly developed, including the RO's compliance with the Board's May 1996 remand, pertaining to the veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). No further assistance to him is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Factual Background The veteran served on active duty from November 1980 to May 1987, at which time he was transferred to the Temporary Disability Retired List. He was awarded military retirement pay at the rate of $915 per month, effective from the first day following his separation from active duty. Upon separation from active duty in May 1987, he filed an application for VA compensation benefits. In June 1987, the RO awarded him compensation benefits, in the amount of $1600 monthly, effective from the first day following the day of his separation from active duty. Due to his receipt of military retirement pay, payment of VA compensation was withheld from June 1, 1987 to August 1, 1987, effective the same date, his military retirement pay, in the amount of $915, was discontinued because the monthly VA compensation exceeded his retired pay. By rating decision of February 1988, the veteran's VA compensation was reduced to a combined 30 percent, effective from May 1988. His monthly payments, therefore, were reduced to $320 per month. In turn, his retirement benefits were reinstated, effective from May 1988, at the adjusted rate of $948. In February 1989, the veteran was notified at his address of record that he was scheduled for a routine VA physical examination to determine the current status of his service- connected disabilities. He was also informed that if he failed to report for the examination without an adequate reason, his VA benefits might be reduced or discontinued. The veteran failed to report for his scheduled March 1989 VA examination; so he was informed by VA letter, dated in late March 1989, which was sent to his address of record, that the VA proposed to reduce his compensation benefits to the rate of $136 per month since the VA needed the results of the scheduled examination to determine his continued entitlement to benefits. In April 1989, the VA received from the veteran a statement that "I will have an exam." By VA letter, dated in May 1989, which was sent to his address of record, the veteran was notified that his examination was rescheduled; however, he did not report for the scheduled June 1989 VA examination. By VA letter, dated in August 1989, sent to the veteran's address of record, he was advised that VA reduced his VA compensation to $136 per month, effective from September 1, 1989. None of the aforementioned VA letters were returned to the RO by the postal authorities as being undeliverable. By VA letter, dated in July 1990 and sent to the veteran's address of record, the VA informed him that his benefit payments have been suspended, effective May 1, 1990, because the benefit checks mailed to him at his address of record had been returned as undeliverable. A December 1990 rating action stopped the checks, effective May 1, 1990, and the veteran was so informed by VA letter of December 1990. The aforementioned VA letters were not returned as undeliverable. In December 1990, the VA notified the U.S. Army Finance and Accounting Center of the suspension of VA benefits action, effective from May 1, 1990. In March 1992, the veteran submitted an application to the VA for additional benefits. Accompanying his application was the veteran's DD Form 214 showing that he was on active duty from May 1989 to March 1992, at which time he was separated form service due to physical disability with severance pay. The VA notified the veteran, by VA letter dated in August 1993, that his benefits have been terminated, effective May 9, 1989, because he had entered active military duty on that date, and that the action would not change his present benefits, which began April 1, 1992, following his separation from active duty service in March 1992. The letter further advised him that he had received VA disability benefits from May 9, 1989 to May 1, 1990, while he was on active duty, thereby creating an overpayment, which will have to be repaid. In response, the veteran related that there is no debt owed the Government because he had repaid any money owed through a payroll deduction while he was on active duty. In support of his claim, information was submitted from the U.S. Army Finance and Accounting Center showing that he had been removed from the Temporary Disability Retirement List, effective February 13, 1989, and that he had been overpaid military retirement benefits in the amount of $1,855.86, from February 14, 1989 to May 8, 1989, the day before he reentered active duty service. The veteran's military Leave and Earnings Statements for August and September 1990 show collection actions for debt payment. The veteran asserts that the debt was repaid, with interest, after eighteen months. Analysis By regulation, not more than one award of pension, compensation, or emergency officers' regular or reserve retirement pay will be made concurrently to any person based on his or her own service, except as provided in 38 C.F.R. § 3.803 relating to naval pension and 38 C.F.R. § 3.750(c) relating to waiver of retirement pay. See 38 U.S.C.A. § 5304(a); 38 C.F.R. § 3.700. Any person entitled to receive retirement pay based on service as a member of the Armed Forces may not receive such pay concurrently with benefits payable under the laws administered by the VA. The term "retirement pay" includes retired pay and retainer pay. A person may receive compensation upon filing with the service department concerned a waiver of so much of his retirement pay as is equal in amount to the compensation to which he is entitled. In the absence of a specific statement to the contrary, the filing of an application for compensation by a veteran entitled to retirement pay constitutes such a waiver. See 38 U.S.C.A. § 5305; 38 C.F.R. § 3.750(c). Pension, compensation, or retirement pay on account of his or her own service will not be paid to any person for any period for which he or she receives active service pay. See 38 U.S.C.A. § 5304(c); 38 C.F.R. § 3.700(a)(1). The veteran asserts that there is no overpayment at issue because he repaid any VA benefits he received while he was on active duty service. He maintains that a deduction was taken out of his active service pay for eighteen months to satisfy any debt owed. The Board does not dispute the fact that the veteran had debt collections taken out of his active service pay each month; however, the evidence from the U.S. Army Finance and Accounting Center and his Leave and Earning Statements, show that debt collection was for an overpayment of military retirement benefits, not for VA compensation benefits. Although the veteran may sincerely believe that he has paid any debt owed the Government when he had the debt collection taken out of his active service pay, an overpayment of U.S. Army retirement benefits and an overpayment of VA compensation benefits are two very separate and distinct actions. The repayment of one of the debts does not satisfy fulfillment of the other debt. The record shows that the veteran returned to active duty on May 9, 1989, and was released from such on March 12, 1992. The record shows that he received VA benefits for the months of May 1989 through April 1990. The law precludes a veteran from receiving VA compensation while that person is receiving active service pay. Inasmuch as the veteran was receiving both concurrently, the RO was correct in terminating payment of his VA compensation benefits, effective from the first day he went back on active duty. In calculating the amount owed, the RO determined how much the veteran was actually paid in VA compensation benefits from the time he entered active duty on May 9, 1989 until the last check cashed, for April 1990, and the amount he should have received. In the veteran's case, since he was then receiving active service pay, he should not have received any VA compensation during the period at issue. Where, as in this case, the law and not the evidence is dispositive of the claim, the claim must be denied because of lack of legal merit or lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The action taken to terminate the veteran's disability compensation during the period of his active duty service was appropriate and the claim is denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals