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%???)

[carlie]

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?

They might - as that would be the correct action for them to take.

JMHO

[Guest]

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.

(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.

my compensation is a combination of two other disabilities...

The bottom line is you received a separation payment and you are now receiving VA disability compensation. My understanding is that VA messed up and did not start recouping your severance pay and when they figure this out, VA may try to take all of it back at once.

CFR 38 Part 3, 3700 General

[Dtomlinson]

Even if I file a completly new claim...so when I have my knee replaced...and its just a matter of time..because both the Army and the VA said that is all that is left for them to do that is when the VA will recoup my separation pay? It kind of confuses me because I get rated one way and when my knee gets worse then recoupment begins...so many years later.....the problem I am having is that my knee is broke....was broke from the begining and when i am old enough to have it replaced then now they recoup.....initial claim was based on Degenerative Arthritis.....there is not much arthritis in my knee.....its just completly unstable and full of junk from last surgery....so my new claim has nothing to do with Arthritis.....if that alone is what the Army separated me for and not the Insatability...then how can they recoup.....sorry didnt mean to rant about it...I am very thankful for your advice...I just really believe the Army should have rated my knee at 30%...but that is hind site because I should have argued then instead of now.......

Thank you so much

David

They might - as that would be the correct action for them to take.

JMHO

[carlie]

It kind of confuses me because I get rated one way and when my knee gets worse then recoupment begins...so many years later....

They SHOULD have recouped severance pay from the very first VA comp check you

started receiving.

[Dtomlinson]

ok, finally found a link and here is how I understand it....please correct me if I am wrong

I understand this to say that yes the VA will recoup, but only based on the UNFIT Disability or the disability that caused the separation from service (my knee). That they can only withold the entire amount (monthly) from the disabilty that caused the severance. I received a 0% disablity rating for my knee and it was only my knee that caused the separation...so the other disabilities are not able to be recouped from.....once the percentage rate for my knee goes up then recoupment will begin at that percentage only....it will not go up if my disability goes up for my knee thereafter.....

REF: M21-1MR, Part III, Subpart v, Chapter 4, Section B

For information about severance pay withholding, see 38 CFR 3.700(a)(3)

(3) Severance pay. Where the disability or disabilities found to be service-connected are the same as those upon which disability severance pay is granted, or where entitlement to disability compensation was established on or after September 15, 1981, an award of compensation will be made subject to recoupment of the disability severance pay. Prior to the initial determination of the degree of disability recoupment will be at the full monthly compensation rate payable for the disability or disabilities for which severance pay was granted. Following initial determination of the degree of disability recoupment shall not be at a monthly rate in excess of the monthly compensation payable for that degree of disability. For this purpose the term “initial determination of the degree of disability” means the first regular schedular compensable rating in accordance with the provisions of Subpart B, Part 4 of this chapter and does not mean a rating based in whole or in part on a need for hospitalization or a period of convalescence. Where entitlement to disability compensation was established prior to September 15, 1981, compensation payable for service-connected disability other than the disability for which disability severance pay was granted will not be reduced for the purpose of recouping disability severance pay. Where entitlement to disability compensation was established on or after September 15, 1981, a veteran may receive disability compensation for disability incurred or aggravated by service prior to the date of receipt of the severance pay, but VA must recoup from that disability compensation an amount equal to the severance pay. Where payment of severance pay was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of the severance pay. Where payment of severance pay was made after September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of the severance pay less the amount of Federal income tax withheld from such pay. For members of the Armed Forces who separated under Chapter 61 of title 10, United States Code, on or after January 28, 2008, no recoupment of severance pay will be made for disabilities incurred in line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Department of Defense. (Authority: 10 U.S.C. 1174(h)(2) and 1212(d))

David

They SHOULD have recouped severance pay from the very first VA comp check you

started receiving.

[Dtomlinson]

Yes they will if I get a retirement or an increase from 0%...

David

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