Majeed v. Principi

16 Vet. App. 421, 2002 U.S. Vet. App. LEXIS 812, 2002 WL 31410362
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 28, 2002
Docket00-2015
StatusPublished
Cited by4 cases

This text of 16 Vet. App. 421 (Majeed v. Principi) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Majeed v. Principi, 16 Vet. App. 421, 2002 U.S. Vet. App. LEXIS 812, 2002 WL 31410362 (Cal. 2002).

Opinions

[423]*423STEINBERG, Judge, filed the opinion of the Court. KRAMER, Chief Judge, filed a concurring opinion.

STEINBERG, Judge:

The appellant, Salahudin Majeed, through counsel, seeks review of an August 14, 2000, decision of the Board of Veterans’ Appeals (Board or BVA) that determined that, of the $30,049.92 special separation bonus (SSB) paid to him by the U.S. Army, $24,039.94 was the proper amount to be recouped from Department of Veterans Affairs (VA) disability compensation. Record (R.) at 4, 7. The appellant filed a brief and a reply brief, and the Secretary filed a brief. Oral argument was held on June 5, 2002. On June 6, 2002, the Court ordered the Secretary to file a memorandum notifying the Court of the status of the appellant’s then-pending request for a waiver of the amount that, according to VA, he owed to VA as an overpayment of his disability compensation. In response to the Court’s order, the Secretary filed a June 20, 2002, response indicating that the appellant’s waiver request had been denied on June 18, 2002. On October 3, 2002, the appellant submitted a notice of supplemental authority regarding a regulatory amendment. The Court has jurisdiction over this case under 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons set forth below, the Court will vacate the Board decision on appeal and remand the matter for readjudication.

I. Relevant Background

The veteran served on active duty in the U.S. Army from December 1981 to September 1992. R. at 10. Upon separation from service, he received an SSB in the amount of $30,058.67 [hereinafter referred to as $30,000]. (We note that there are minor discrepancies in figures set forth at various points in the record on appeal (ROA). See, e.g., R. at 10 (describing SSB amount as “$30,058.67”), 26 (same), 112 (describing SSB amount as “$30,284.68”), 123 (same), 341 (describing SSB amount as “$30,049.92”), 392 (same). Because our disposition, set forth below, is not predicated on the precise amounts involved here, rounded figures will be used in order to simplify the ensuing discussion. The Court notes that this rounding is intended to improve readability only and not to serve as a recalculation of any amount.) Several readjustments, totaling $9,529.54 [hereinafter referred to as $9,500], were made to the SSB amount, apparently reflecting recoupment by the U.S. Army of an amount sufficient to satisfy obligations, primarily repayment of a reenlistment bonus for which the veteran had not met his full contractual service obligation, that the veteran owed to the U.S. Army. R. at 60. He thereafter served on active duty for training from February through July 1993. R. at 11.

In August 1994, the VA Regional Office (RO) in Atlanta, Georgia, granted the veteran VA service connection for several disabilities, for which he was assigned a combined disability rating of 40%. R. at 18. That VARO informed him that his benefits would be withheld until all of the $30,000 SSB had been recouped. R. at 26. He appealed to the Board the issue of recoupment (R. at 29), and in January 1997 his representative filed with the Board a pleading arguing that the veteran “should receive his service[-]connected disability compensation without recoupment of his separation pay.” R. at 38. In February 1997, the Board remanded the veteran’s claim to the RO to clarify several matters and then to “readjudicate the veteran’s claim that his VA disability compensation is not subject to recoupment of separation pay”. R. at 46. After the RO adjudicated the other issues on remand (and apparently did not readjudicate the issue of recoupment, see R. at 68, 78), the veteran filed a Notice of Disagreement (NOD) as to that RO decision (R. at 81). It appears that he argued that, because the $9,500 had been [424]*424deducted from his SSB, he received only $20,755.14 [hereinafter referred to as $20,750] before taxes and that that amount was the proper amount subject to recoupment. Ibid.; compare R. at 97 (“[y]ou should have only been recouping $20,[750]”) with R. at 81 (“[y]ou should only be collecting separation pay balance of $16,000”).

An April 1998 “Report of Contact” seems to indicate that an employee at the Winston-Salem, North Carolina, RO contacted VA’s Central Office to request clarification of the amount of SSB to be recouped in the veteran’s case. R. at 106. According to an April 1998 Supplemental Statement of the Case (SSOC), “[i]t was determined that only the $20,[750] should be recouped”, and, therefore, “[a]n out[-]of[-]system payment of [$9,500 was] made to the veteran”. R. at 113. The SSOC went on to note that “[t]he recoupment of ... SSB[ ] in the amount of $20,[750] is correct.” R. at 114.

The veteran again appealed this decision to the Board; he asserted once more that his benefits should not be subject to re-coupment of his SSB. R. at 118. In July 1998, the Board determined, inter alia, that “[t]he veteran’s VA disability compensation is subject to recoupment of separation pay”. R. at 125. In making this decision, the Board noted that, because “the amount of the separation pay to be recouped is not at issue[,] the Board will not make any findings in that regard.” R. at 123. The veteran then appealed the matter to this Court. R. at 137. On January 8, 1999, the Secretary filed a motion to remand the matter for readjudication in light of the post-BVA-decision amendment of 10 U.S.C. § 1174(h)(2). R. at 137. (The amendment to section 1174(h)(2) excluded from recoupment an amount equal to the amount of federal income tax withheld from the separation pay. National Defense Authorization Act for Fiscal Year 1997, Pub.L. No. 104-201, § 653, 110 Stat. 2422, 2583 (1996) [hereinafter NDAA FY 1997 § 653], That amendment was later extended “to any payment of separation pay under the special separation benefits program under section 1174a of that title that was made during the period beginning on December 5, 1991, and ending on September 30, 1996”. See Transportation Equity Act of the 21st Century, Pub.L. No. 105-178, § 8208, 112 Stat. 107, 495 (1998) [hereinafter TEAC 1998 § 8208].) On February 13, 1999, the appellant joined in the Secretary’s remand motion (R. at 141), and on February 19, 1999, the Court, via an order of the Clerk of the Court, granted the motion, vacated the underlying Board decision, and remanded the matter (R. at 143).

On remand, the veteran filed with the Board a pleading in which he argued, inter alia, that he “should be given every advantage in recalculating the amounts that have been previously recouped from him because the law has been amended to require [that] [f]ederal [i]ncome tax withheld from such pay be deducted from the amount recouped and [be] returned to him.” R. at 147. He later filed an additional pleading in which he argued, inter alia, that the Board should “recalculate the amount of previously withheld [fjederal income taxes to be refunded [to him] as soon as possible by payment of an ‘early hardship payment’ ”. R. at 268. In a June 1999 BVA decision, the Board, after noting that “it is not clear why the amount of over $9,000[,] which appears to have represented a debt of the veteran to the service department and which the service department recouped from the separation pay[,] should not have been considered as part of the separation pay” (R.

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Cite This Page — Counsel Stack

Bluebook (online)
16 Vet. App. 421, 2002 U.S. Vet. App. LEXIS 812, 2002 WL 31410362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/majeed-v-principi-cavc-2002.