Recouping Separation Pay

[Dtomlinson]

I was wondering if anyone could tell me if the VA will finally recoup my separation pay. I was separated from the Army for severe knee pain and instabilty rated at 0%. The VA also rated my knee condition at 0%. I was awarded 70% for sleep apnea and major depression. I assumed that because both the Army and the VA rated me at 0% that they would not recoup my sep pay and they have not. I never really agreed with either the Army or the VA wih their 0% because my knee was messed up and has been ever since the very first sugery...but I went with it anyway...now my back is messed up and my knee has gotten worse. If I file for an increase for my knee and try to connect my back to my knee will the VA then recoup for my knee...I am also thinking about filing with the PDBR and try to get the Army to award a medical retirement instead of the 0%....I truly feel that I was low balled and that they rated my knee wrong...... (Two complete ACL Replacement surgery's and removal of my meniscus rated at 0%???)

[jbasser]

The way I look at it is if you get an earlier effective date they will catch it and deduct the severance pay.

Perhaps someone has been through this one and can chime in.

Basser

[Guest]

When were you awarded 70% service connection?

[Guest]

As far as I know it is still the law for VA to recoup Severance Pay:

Separation pay and special separation benefits.

(i) Where entitlement to disability compensation was established on or after September 15, 1981, a veteran who has received separation pay may receive disability compensation for disability incurred in or aggravated by service prior to the date of receipt of separation pay subject to recoupment of the separation pay. Where payment of separation pay was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of separation pay. Where payment of separation pay was made after September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of separation pay less the amount of Federal income tax withheld from such pay. The Federal income tax withholding amount is the flat withholding rate for Federal income tax withholding.

(ii) The receipt of separation pay does not affect the payment of disability compensation based on a subsequent period of service. Compensation payable for service-connected disability incurred or aggravated in a subsequent period of service will not be reduced for the purpose of offsetting separation pay based on a prior period of service.

(iii) Where payment of special separation benefits under 10 U.S.C. 1174a was made on or after December 5, 1991, VA will recoup from disability compensation an amount equal to the total amount of special separation benefits less the amount of Federal income tax withheld from such pay. The Federal income tax withholding amount is the flat withholding rate for Federal income tax withholding.

http://ecfr.gpoacces....73.219&idno=38

If you are receiving compensation payments, you should contact VA and set up some type of payment plan.

[Dtomlinson]

I was discharged in Aug 06 and filed with the VA then.....SEP 06 was my award date.

When were you awarded 70% service connection?

[Dtomlinson]

I am not receiving any compensation for my Knee which was the unfit finding...my compensation is a combination of two other disabilities...My question really should have been a little morre specific...my knee has gotten worse and if I file a new claim with my knee will the VA then come back and start recouping my separation pay?

Thanks

David

As far as I know it is still the law for VA to recoup Severance Pay:

Separation pay and special separation benefits.

(i) Where entitlement to disability compensation was established on or after September 15, 1981, a veteran who has received separation pay may receive disability compensation for disability incurred in or aggravated by service prior to the date of receipt of separation pay subject to recoupment of the separation pay. Where payment of separation pay was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of separation pay. Where payment of separation pay was made after September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of separation pay less the amount of Federal income tax withheld from such pay. The Federal income tax withholding amount is the flat withholding rate for Federal income tax withholding.

(ii) The receipt of separation pay does not affect the payment of disability compensation based on a subsequent period of service. Compensation payable for service-connected disability incurred or aggravated in a subsequent period of service will not be reduced for the purpose of offsetting separation pay based on a prior period of service.

(iii) Where payment of special separation benefits under 10 U.S.C. 1174a was made on or after December 5, 1991, VA will recoup from disability compensation an amount equal to the total amount of special separation benefits less the amount of Federal income tax withheld from such pay. The Federal income tax withholding amount is the flat withholding rate for Federal income tax withholding.

http://ecfr.gpoacces....73.219&idno=38

If you are receiving compensation payments, you should contact VA and set up some type of payment plan.

[Dtomlinson]

I am not looking for an earlier effective date. I have always thought that the Army or the VA did not rate my knee correctly. I had two complete ACL Reconstructions and my meniscus removed. My MEB/PEB was based on my knee. The Army used code 5003 Arthritis Degenerative due to trauma. Then said instability was not an unfitting disability...therefore rating me at 0%. The VA rated me at 0% as well but also found that I was 70% with sleep apnea WCPAP and major depression....the army said both Sleep apnea and Major depression were not unfitting and did not rate them. I have been on the fence about requesting the PDBR review my case because I feel the Army used an incorrect code of (5003). I feel they should have used 5257 (20%)for ROM because that is where all of my pain comes from and also code 5259 removal of Cartilage (10% added not combined) giving me the magic 30% for a retirement verses the separtation that I received. But I am afraid if I do that and the PDBR only cops to 10 or 20%% then the VA will do the same and recoup my severance pay.

quote name='jbasser' timestamp='1307455783' post='247194']

The way I look at it is if you get an earlier effective date they will catch it and deduct the severance pay.

Perhaps someone has been through this one and can chime in.

Basser