Citation Nr: 1829777	
Decision Date: 08/01/18    Archive Date: 08/17/18

DOCKET NO.  13-04 481	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Whether the termination of Department of Veterans Affairs (VA) compensation benefits from February 22, 2010 to January 21, 2015, due to active duty during the same period was proper. 

(Numerous other issues, concerning entitlement to service-connection and higher ratings, are the subject of a separate Board decision.)  


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

C. Lawson, Counsel

INTRODUCTION

The Veteran served on active duty from October 1976 to October 1982, September 1987 to September 1992, March to December 1999, and February 22, 2010 to January 21, 2015.

This matter comes to the Board of Veterans' Appeals (Board) on appeal following an August 2015 decision.  Previously, VA had terminated compensation benefits from July 22, 2010 to January 21, 2014, but has now changed that termination to from February 22, 2010 to January 21, 2015.  

Appeals for higher ratings for left shoulder disability, a total disability rating for compensation based upon individual unemployability (TDIU), and the matter of whether VA properly withheld disability compensation benefits based on drill or reserve pay status for fiscal year 2015 have not yet been certified by the agency of original jurisdiction for Board review.  They will be addressed in a later Board decision.  


FINDING OF FACT 

It is not in dispute that the Veteran was in receipt of both active duty service pay and VA compensation while serving from February 22, 2010 to January 21, 2015.


CONCLUSION OF LAW

The termination of compensation benefits from February 22, 2010 to January 21, 2015, due to active duty during the same period was proper.  38 C.F.R. §§ 3.654, 3.700 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

The facts in this case are not in dispute.  The evidence shows that the Veteran served on active duty from February 22, 2010 to January 21, 2015 and that he received and/or was terminated from receiving VA compensation benefits commensurate with this period of active duty, on the basis of his also receiving active duty service pay during this timeframe.  By law, the VA compensation at issue is prohibited since the Veteran was being paid active duty pay for the same period.  Under 38 U.S.C. § 5304(c), Veterans receiving VA disability compensation or pension must relinquish these benefits when they return to active duty.  This includes members of the National Guard who are activated under 10 U.S.C. or who serve full time in the Active Guard Reserve under 32 U.S.C.  See also 38 C.F.R. § 3.654 and 3.700.  Accordingly, the appeal lacks legal merit and may not be granted.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  The Veteran has argued that VA was at fault in the creation of the compensation problem.  However, that has no bearing on the matter of whether the termination of VA compensation was proper.  

The Board thanks the Veteran for his many years of service.  


ORDER

The termination of VA compensation benefits from February 22, 2010 to January 21, 2015, due to active duty during the same period was proper. 

______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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