DISABILITY SEVERANCE PAY AND VA DISABLITY BENEFITS
38 CFR 3.700 prohibits the Department of Veterans Affairs (VA) from paying compensation to a Veteran who also received certain separation benefits from the Department of Defense (DoD), including but not limited to, disability severance pay. Disability severance pay is in play when a service member who is found physically unfit to perform his or her duties due to a disability. Separation may occur with entitlement to disability severance pay or without entitlement to disability benefits. Separation with disability severance pay occurs when the service member's unfitting disabilities are determined by the Armed Forces to be service connected, the service member has less than 20 years of service as computed under 10 U.S.C. § 1208, and the service member's combined disability rating assigned to the unfitting disabilities is less than 30 percent.
Before any disability severance pay can be recouped, it is necessary to identify the disability(ies) for which the Veteran received this benefit. The best source for this information is the Veteran's Physical Evaluation Board (PEB) report, which is normally included in the Veteran's service treatment records.
Generally, if a Veteran received disability severance pay, the VA must withhold from his/her monthly compensation an amount equal to the monthly compensation payable for the disability(ies) for which the Veteran received disability severance pay. VA continues to withhold this amount until it has recouped the amount specified by law. The VA can even withhold a portion of any additional compensation a Veteran may be receiving such as for dependents and special monthly compensation.
The monthly withholding amount may never exceed the monthly amount of compensation payable based on the initial, compensable rating that VA assigns the severance-pay disability(ies). As a very simple example, if the DoD issues a 20% disability rating for a Veteran's service connected back injury as a result of the Physical Evaluation Board findings, the VA can only reduce the Veteran's VA monthly compensation by 20%. The VA, however, is prohibited from recouping disability severance pay from VA disability compensation if the Veteran
(1) separated from service on or after January 28, 2008, and
(2) incurred the disability for which he or she received disability severance pay in the line of duty in a combat zone or during combat-related operations.
Of course, with every rule there is an exception and there are many intricacies based on the specific factual situations of each Veteran. If you are a Veteran who has received disability severance pay and needs help navigating the VA disability process call the experienced veterans disability attorneys at Gardberg & Kemmerly, P.C. at 251-343-1111 today for a free case evaluation. The disability attorneys at Gardberg & Kemmerly, P.C. help veterans throughout the Gulf Coast area, including, Alabama, Florida, Mississippi, and Louisiana