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New To The Va Maze


jecsb4

Question

Well I had 6 years active duty 81-87 and am still in the reserves and was called up for Operation Enduring Freedom twice (stateside). Back in Feb 04, I filed for C&P for warious health issues (hernias, flat feet, hammer toes, migraines, blood clots in legs, severed wrist liginament and depression.

It wasn't until June 05 that I got scheduled for 5 physicals - Gen Med, psychology, Internal, VAS surgery, neurology. In Sept I requested copies of the exams from the Houston VARO. I STILL HAVENT RECEIVED THEM. Then in Dec the scheduled a another Gen Med exam. I was out of town and submitted a request to reschedule. THen they send me a letter saying they are backloged and they have all the info that they need.

Why would they want another exam, and why havent I received my coopies of the exams?

I calle my SO and he said my file was in Cleaveland Ohio. WHY? When I called the VA earlier they said my file was in adjudication. What is that?

So I wait. Should I make a 2nd request for my exams or wait to I get a rating? I would like tt know the steps to appeal. DO I have 120 day? WHo do I contact?

Since I have 3 more years in the reserves before I decide to retire, If I am awarded and monies, Is that money offset from reserve pay before taxes?

What happens once I turn 60 and draw retired pay? Is the VA C&P offset by my reserve pay? If so that sucks!!

THansk for the advice.

Joe

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I am thinking that your claim might have gone to the Appeals Management Team- they check the VARO for errors in the adjudication- yeah right- it is often a stall tactic-

the AMC didnt catch many errors in one of my vets claims- just stalled the decision further-

I think you should go to the VA web site- and get to the query page under Benefits-Comp-

and send your VARO an email-as a service complaint- asking them what you asked us here-

they should have sent your stuff by now- then again at this point it could add more time for them to copy it all- still it sure pays to have copies of the C & P results because the VA can often manipulate the results of these exams in their decisions.

Berta

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  • HadIt.com Elder

Joe:

Just wanted to welcome you to Hadit. There is a ton of info on the Hadit Web Page and usually someone will answer most of your questions.

The main thing is don't give up on your claim.

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  • HadIt.com Elder

welcome to our world, the best advice I can give you is take the time to learn the rules, ask questions, the only dumb question is the one you don't ask, we were all where you are now in the claims process, your file was sent to Cleveland because your VARO is over loaded and it might be 2 years before they handled it, be glad they sent it out to another location, if you don't agree with what they do, appeal it, and if they do offset your retirement with VA compensation at least the VA comp isn't taxable where retirement pay is, so there is advantages...

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Might be faster and easier to request your whole c-file. It's good to have the whole thing anyway. Your C&P exam results will be in there. (better be). Like Testvet said, your c-file is at another VARO because of backlog at your current VARO. Claims that are ready to rate are sent out. If at first they reqested another exam and then decided they don't need one, I'd be ready for appeal. If a decision is questionable in your favor, you can bet that you'd get the exam. That is just opinion though, and not always true. You have 1 year to appeal a decision at the VARO level. 120 days if it is a BVA decision.

Time

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Thanks everyone for the help in this crazy mess!!

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Well I had 6 years active duty 81-87 and am still in the reserves and was called up for Operation Enduring Freedom twice (stateside). Back in Feb 04, I filed for C&P for warious health issues (hernias, flat feet, hammer toes, migraines, blood clots in legs, severed wrist liginament and depression.

It wasn't until June 05 that I got scheduled for 5 physicals - Gen Med, psychology, Internal, VAS surgery, neurology. In Sept I requested copies of the exams from the Houston VARO. I STILL HAVENT RECEIVED THEM. Then in Dec the scheduled a another Gen Med exam. I was out of town and submitted a request to reschedule. THen they send me a letter saying they are backloged and they have all the info that they need.

Why would they want another exam, and why havent I received my coopies of the exams?

I calle my SO and he said my file was in Cleaveland Ohio. WHY? When I called the VA earlier they said my file was in adjudication. What is that?

So I wait. Should I make a 2nd request for my exams or wait to I get a rating? I would like tt know the steps to appeal. DO I have 120 day? WHo do I contact?

Since I have 3 more years in the reserves before I decide to retire, If I am awarded and monies, Is that money offset from reserve pay before taxes?

What happens once I turn 60 and draw retired pay? Is the VA C&P offset by my reserve pay? If so that sucks!!

THansk for the advice.

Joe

Will you be given a medical discharge from the reserves if you are granted VA compensation?
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Your C&P exam results should be either at the RO or the hospital where you had the exams done. I got mine from the hospital by requesting them from the records office at the VAMC.

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Will you be given a medical discharge from the reserves if you are granted VA compensation?

Well as far as the reserves, I have over 20 good years so I am eligable for retired pay at age 60. I have two medical profiles - one for my feet and the other for my righ wrist. For the physical fitness test I can't do the 2 mile run or pushups. I only do the exercise bike and situps.

I don't think I would be given a medical discharge, since my unit only does simulated computer war game exercise. Not very physical....

Joe

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This may or may not pertain to your situation.

DATE: 04-30-90

CITATION: VAOPGCPREC 10-90

Vet. Aff. Op. Gen. Couns. Prec. 10-90

TEXT:

SUBJECT: Disability pay under 37 U.S.C. § 204(g), (h) and (i)

QUESTION PRESENTED:

In view of the prohibition contained in 38 U.S.C. § 3104 © against payment of pension, compensation, and retirement pay to an individual for any period during which he or she receives active service pay, does compensation payable under 37 U.S.C. § 204(g), (h) and (i) to members of a reserve component of the uniformed services, who are disabled during a period of active duty or inactive-duty training, represent active service pay?

COMMENTS:

1. Statutory changes, beginning in 1986 and culminating with the passage of Public Law No. 100-456 in 1988, have substantially altered the disability pay provided for reservists FN1 in 37 U.S.C. s 204. Earlier, receipt of this type of pay was limited to reservists disabled by disease while performing active duty of more than 30 days and to those disabled by injury while

performing any period of active duty or inactive-duty training. 37 U.S.C. § 204 (1985) (amended by Pub.L. No. 99-661, 100 Stat. 3875 (1986) and Pub.L. No. 100-456, 102 Stat. 1918 (1988)). The amendments to section 204 have expanded the number of possible recipients to include those disabled by disease or illness during inactive-duty training or active duty of any duration. However, it is important to note that these benefits are now offset by any nonmilitary earned income received concurrently with the military disability pay. Additional limitations on the amount a reservist may receive under subsections (g) and (h) are contained in 37 U.S.C. § 204(i). For instance, in no event may the amount exceed the amount of pay and allowances provided for a regular member of corresponding grade and length of service. Also, the pay and allowances cannot generally be paid for more than six months.

2. The similarity between this disability pay and disability severance pay is striking. They are very similar in purpose, compensating a member during the months immediately following a period of duty during which he became disabled. See 10 U.S.C. §§ 1203 and 1212. Also, both types of pay require a calculation, with basic monthly pay used as a starting point. However, it is clear that severance pay does not represent active service pay and is not subject to the prohibition contained at 38 U.S.C. § 3104. Instead, when Congress established this type of "special pay," it also provided for offsets of these amounts, to a large extent, against VA benefits awarded as a result of the same period of service. See 10 U.S.C. § 1174(h)(2). Congress has not included an analogous provision prohibiting duplicate payments, where disability pay to reservists is concerned. Without a specific statutory provision in section 204, or elsewhere in title 37, it must be concluded that concurrent payment is

allowed, unless it would run counter to other statutory provisions, including 38 U.S.C. § 3104©, with its broader prohibition against concurrent payment of "pension, compensation, or retirement pay" and "active service pay."

3. In this regard, we note the presence of an important companion section, 10 U.S.C. § 684 It provides that:

" A Reserve ... who because of his earlier military service is entitled to a pension, retired or retainer pay, or disability compensation, and who performs duty for which he is entitled to compensation, may elect to receive for that duty either--(1) the payments to which he is entitled because of his earlier military service; or (2) if he specifically waives those payments, the pay and allowances authorized by law for the duty that he is performing."

That provision, while not using the term "active service pay," is clearly addressing the situation under consideration. It is noteworthy, therefore, that the serviceman may continue to receive those benefits listed in 38 U.S.C. § 3104© if he waives the "pay and allowances authorized by law for the duty that he is performing." Under applicable rules of statutory construction, this may be viewed as a statutory definition of "active service

pay," as that term is used in section 3104©. See 2A N.J. Singer, Sutherland Statutory Construction, §§ 51.02 and 51.03 (4th ed. 1984).

4. In reviewing the existing statutory scheme, we note that "pay" is defined in title 37 to include "basic pay, special pay, retainer pay, incentive pay, retired pay and equivalent pay, but not allowances." 37 U.S.C. § 101(21). However, Public Law No. 100-456, title VI, part D, 102 Stat. 1918, 1984 (1988), when amending subsections (g), (h) and (i) of section 204, referred to these as "Benefits Relating to Incapacitation of Certain Reserve

Members in Line of Duty" and did not otherwise define the nature

of these benefits. Curiously, section 204 is contained in the "Basic Pay" chapter of title 37. Even so, there is no apparent ambiguity about the status of reservists who may receive that pay. That is, if a reservist is retained on active duty during the course of an illness or while convalescing from injury, he is entitled to full pay and allowances. On the other hand, if he has been released from his short tour of active duty or

inactive-duty training, but continues to have residual health problems which interfere with his customary employment, he may receive disability pay, as it is now structured in section 204. See 54 Comp.Gen.Op. 33, 36 (1974) (period when reservist was entitled to pay and allowances in accordance with the provisions of 37 U.S.C. § 204 is not considered active military service).

5. Part D of title VI, Pub.L. No. 100-456, also contains an amendment to 37 U.S.C. § 4111 relating to travel allowances for dependents of a disabled reservist who is either "serving on active duty or is entitled to pay and allowances under section 204(g)." This contemporary legislative provision offers additional evidence that Congress intended for pay and allowances under section 204(g) to be something other than pay for performing active military service. See 2A N.J. Singer, Sutherland Statutory Construction, § 51.01 (4th ed. 1984).

6. We are aware, in reaching the conclusion that disability pay under 37 U.S.C. § 204 (g), (h) and (i) does not represent active service pay, that an opinion of the General Counsel in 1958 reached the opposite conclusion. That opinion held that the "sick pay" or "incapacitation pay" received by a guardsman after the expiration of a training tour during which he was injured represented "active service pay." Op.G.C. 31-58 (9-11-58). However, the nature of this disability pay has changed in several

important regards since the 1950s. Examination of the two factors considered crucial to that decision demonstrates the differences dramatically. First, the General Counsel noted that the status of the guardsman involved was ambiguous. He was described by the National Guard as "absent, sick." Second, the General Counsel found that, through receipt of full pay and allowances, the guardsman was being treated exactly as would a member of the regular services who became incapacitated in the line of duty. With recent changes in the law, there is no longer ambiguity concerning the status of recipients of this disability

pay. Also, reservists are no longer guaranteed full pay and allowances because of offsets for nonmilitary earned income.

7. The General Counsel opinion in 1958 led to adoption of a regulatory definition of "active service pay" which includes:

" S ick pay" or "incapacitation pay" received by a member of a reserve component who suffers injury on a training tour and continues to receive such "pay" after expiration of scheduled training pay and not in an active duty status. 38 C.F.R. § 3.700(a)(1)(i). Obviously, in view of this opinion, that inclusion is no longer valid.

HELD:

Payments made to reservists, including members of the Army and Air Force National Guards, pursuant to the provisions of 37 U.S.C. § 204(g), (h) and (i) are in the nature of temporary disability compensation and are not intended to represent payment for duty performed, as described in 10 U.S.C. § 684. The statutes creating, and modifying, this benefit do not contain a provision prohibiting concurrent payment of these benefits with

pension, VA compensation or retirement pay. See Pub.L. No. 99-661, 100 Stat. 3875 (1986) and Pub.L. No. 100-456, 102 Stat. 1918 (1988). While previously viewed by the General Counsel as representing "active service pay" and, therefore, subject to the prohibition in 38 U.S.C. § 3104© against concurrent payment with other benefits, statutory changes in the nature of these payments leads us to conclude that there is no longer legal authority for that interpretation. Instead, we conclude that payments to reservists under the provisions of 37 U.S.C. § 204(g), (h) and (i) are made at a time when reservists are no longer in an "active duty" status and do not otherwise represent "active service pay." Therefore, the prohibition against concurrent payment of benefits contained in 38 U.S.C. § 3104 ©

is not applicable to these payments.

1 The term "reservist(s)" is used throughout this opinion to mean all members of reserve components of the uniformed services, including the Army and Air Force National Guards. See 37 U.S.C. § 101(24).

VETERANS ADMINISTRATION GENERAL COUNSEL

Vet. Aff. Op. Gen. Couns. Prec. 10-90

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This may or may not pertain to your situation.

DATE: 04-30-90

CITATION: VAOPGCPREC 10-90

Vet. Aff. Op. Gen. Couns. Prec. 10-90

TEXT:

SUBJECT: Disability pay under 37 U.S.C. § 204(g), (h) and (i)

QUESTION PRESENTED:

In view of the prohibition contained in 38 U.S.C. § 3104 © against payment of pension, compensation, and retirement pay to an individual for any period during which he or she receives active service pay, does compensation payable under 37 U.S.C. § 204(g), (h) and (i) to members of a reserve component of the uniformed services, who are disabled during a period of active duty or inactive-duty training, represent active service pay?

COMMENTS:

1. Statutory changes, beginning in 1986 and culminating with the passage of Public Law No. 100-456 in 1988, have substantially altered the disability pay provided for reservists FN1 in 37 U.S.C. s 204. Earlier, receipt of this type of pay was limited to reservists disabled by disease while performing active duty of more than 30 days and to those disabled by injury while

performing any period of active duty or inactive-duty training. 37 U.S.C. § 204 (1985) (amended by Pub.L. No. 99-661, 100 Stat. 3875 (1986) and Pub.L. No. 100-456, 102 Stat. 1918 (1988)). The amendments to section 204 have expanded the number of possible recipients to include those disabled by disease or illness during inactive-duty training or active duty of any duration. However, it is important to note that these benefits are now offset by any nonmilitary earned income received concurrently with the military disability pay. Additional limitations on the amount a reservist may receive under subsections (g) and (h) are contained in 37 U.S.C. § 204(i). For instance, in no event may the amount exceed the amount of pay and allowances provided for a regular member of corresponding grade and length of service. Also, the pay and allowances cannot generally be paid for more than six months.

2. The similarity between this disability pay and disability severance pay is striking. They are very similar in purpose, compensating a member during the months immediately following a period of duty during which he became disabled. See 10 U.S.C. §§ 1203 and 1212. Also, both types of pay require a calculation, with basic monthly pay used as a starting point. However, it is clear that severance pay does not represent active service pay and is not subject to the prohibition contained at 38 U.S.C. § 3104. Instead, when Congress established this type of "special pay," it also provided for offsets of these amounts, to a large extent, against VA benefits awarded as a result of the same period of service. See 10 U.S.C. § 1174(h)(2). Congress has not included an analogous provision prohibiting duplicate payments, where disability pay to reservists is concerned. Without a specific statutory provision in section 204, or elsewhere in title 37, it must be concluded that concurrent payment is

allowed, unless it would run counter to other statutory provisions, including 38 U.S.C. § 3104©, with its broader prohibition against concurrent payment of "pension, compensation, or retirement pay" and "active service pay."

3. In this regard, we note the presence of an important companion section, 10 U.S.C. § 684 It provides that:

" A Reserve ... who because of his earlier military service is entitled to a pension, retired or retainer pay, or disability compensation, and who performs duty for which he is entitled to compensation, may elect to receive for that duty either--(1) the payments to which he is entitled because of his earlier military service; or (2) if he specifically waives those payments, the pay and allowances authorized by law for the duty that he is performing."

That provision, while not using the term "active service pay," is clearly addressing the situation under consideration. It is noteworthy, therefore, that the serviceman may continue to receive those benefits listed in 38 U.S.C. § 3104© if he waives the "pay and allowances authorized by law for the duty that he is performing." Under applicable rules of statutory construction, this may be viewed as a statutory definition of "active service

pay," as that term is used in section 3104©. See 2A N.J. Singer, Sutherland Statutory Construction, §§ 51.02 and 51.03 (4th ed. 1984).

4. In reviewing the existing statutory scheme, we note that "pay" is defined in title 37 to include "basic pay, special pay, retainer pay, incentive pay, retired pay and equivalent pay, but not allowances." 37 U.S.C. § 101(21). However, Public Law No. 100-456, title VI, part D, 102 Stat. 1918, 1984 (1988), when amending subsections (g), (h) and (i) of section 204, referred to these as "Benefits Relating to Incapacitation of Certain Reserve

Members in Line of Duty" and did not otherwise define the nature

of these benefits. Curiously, section 204 is contained in the "Basic Pay" chapter of title 37. Even so, there is no apparent ambiguity about the status of reservists who may receive that pay. That is, if a reservist is retained on active duty during the course of an illness or while convalescing from injury, he is entitled to full pay and allowances. On the other hand, if he has been released from his short tour of active duty or

inactive-duty training, but continues to have residual health problems which interfere with his customary employment, he may receive disability pay, as it is now structured in section 204. See 54 Comp.Gen.Op. 33, 36 (1974) (period when reservist was entitled to pay and allowances in accordance with the provisions of 37 U.S.C. § 204 is not considered active military service).

5. Part D of title VI, Pub.L. No. 100-456, also contains an amendment to 37 U.S.C. § 4111 relating to travel allowances for dependents of a disabled reservist who is either "serving on active duty or is entitled to pay and allowances under section 204(g)." This contemporary legislative provision offers additional evidence that Congress intended for pay and allowances under section 204(g) to be something other than pay for performing active military service. See 2A N.J. Singer, Sutherland Statutory Construction, § 51.01 (4th ed. 1984).

6. We are aware, in reaching the conclusion that disability pay under 37 U.S.C. § 204 (g), (h) and (i) does not represent active service pay, that an opinion of the General Counsel in 1958 reached the opposite conclusion. That opinion held that the "sick pay" or "incapacitation pay" received by a guardsman after the expiration of a training tour during which he was injured represented "active service pay." Op.G.C. 31-58 (9-11-58). However, the nature of this disability pay has changed in several

important regards since the 1950s. Examination of the two factors considered crucial to that decision demonstrates the differences dramatically. First, the General Counsel noted that the status of the guardsman involved was ambiguous. He was described by the National Guard as "absent, sick." Second, the General Counsel found that, through receipt of full pay and allowances, the guardsman was being treated exactly as would a member of the regular services who became incapacitated in the line of duty. With recent changes in the law, there is no longer ambiguity concerning the status of recipients of this disability

pay. Also, reservists are no longer guaranteed full pay and allowances because of offsets for nonmilitary earned income.

7. The General Counsel opinion in 1958 led to adoption of a regulatory definition of "active service pay" which includes:

" S ick pay" or "incapacitation pay" received by a member of a reserve component who suffers injury on a training tour and continues to receive such "pay" after expiration of scheduled training pay and not in an active duty status. 38 C.F.R. § 3.700(a)(1)(i). Obviously, in view of this opinion, that inclusion is no longer valid.

HELD:

Payments made to reservists, including members of the Army and Air Force National Guards, pursuant to the provisions of 37 U.S.C. § 204(g), (h) and (i) are in the nature of temporary disability compensation and are not intended to represent payment for duty performed, as described in 10 U.S.C. § 684. The statutes creating, and modifying, this benefit do not contain a provision prohibiting concurrent payment of these benefits with

pension, VA compensation or retirement pay. See Pub.L. No. 99-661, 100 Stat. 3875 (1986) and Pub.L. No. 100-456, 102 Stat. 1918 (1988). While previously viewed by the General Counsel as representing "active service pay" and, therefore, subject to the prohibition in 38 U.S.C. § 3104© against concurrent payment with other benefits, statutory changes in the nature of these payments leads us to conclude that there is no longer legal authority for that interpretation. Instead, we conclude that payments to reservists under the provisions of 37 U.S.C. § 204(g), (h) and (i) are made at a time when reservists are no longer in an "active duty" status and do not otherwise represent "active service pay." Therefore, the prohibition against concurrent payment of benefits contained in 38 U.S.C. § 3104 ©

is not applicable to these payments.

1 The term "reservist(s)" is used throughout this opinion to mean all members of reserve components of the uniformed services, including the Army and Air Force National Guards. See 37 U.S.C. § 101(24).

VETERANS ADMINISTRATION GENERAL COUNSEL

Vet. Aff. Op. Gen. Couns. Prec. 10-90

Whow, I need to read this very slowly and probally get a lawyer to explaine it to me - I am slow!

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