Citation Nr: 0905688 Decision Date: 02/17/09 Archive Date: 02/24/09 DOCKET NO. 08-13 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a waiver of recovery of an overpayment of VA compensation benefits, calculated in the amount of $72,205.93, including the question of whether the RO properly terminated those benefits for the period extending from December 27, 2001 to July 31, 2004, based on the Veteran's status as a fugitive felon. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The Veteran served active duty for training from April 1988 to September 1988 and on active duty from November 1990 to May 1991, including in the Southwest Asia theater of operations. Her claim comes before the Board of Veterans' Appeals (Board) on appeal of July 2004 and August 2006 decisions of the RO in St. Petersburg, Florida, including its Committee on Waivers and Compromises. The Veteran testified in support of this claim during a hearing held before the undersigned Veterans Law Judge in October 2008. FINDINGS OF FACT 1. In April 1995, the Veteran began receiving VA compensation benefits at the 100 percent rate based on service-connected disabilities and a finding of individual unemployability. 2. In May 2004, the RO received notice from a warrant agency that the Veteran was the subject of an outstanding warrant that had been issued on December 1, 1998. 3. In July 2004, the RO terminated the Veteran's VA compensation benefits, effective from December 27, 2001, based on a finding that the Veteran was a fugitive felon. 4. After learning from the RO of the outstanding warrant, the Veteran took immediate action to clear it; on September 8, 2004, in response, a court issued an order dismissing the warrant and terminating the Veteran's case. 5. Based on the order, the RO reinstated the Veteran's VA compensation benefits, effective from September 8, 2004. 6. The RO's actions from July 2004 to September 2004 created an overpayment of VA compensation benefits, calculated in the amount of $72,205.93. 7. In September 2004, the Veteran requested a waiver of recovery of the overpayment, which the RO's Committee on Waivers and Compromises denied in August 2006. 8. At the time the RO terminated the Veteran's VA compensation benefits, there was insufficient evidence of record to show that the Veteran met the definition of fugitive felon. CONCLUSION OF LAW The RO improperly terminated the Veteran's VA compensation benefits for the period extending from December 27, 2001 to July 31, 2004. 38 U.S.C.A. § 5313B (West 2002); 38 C.F.R. § 3.665(n) (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2008). The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide, in part, that VA will notify the claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2008); see also 73 Fed. Reg. 23,353, 23,356 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, the RO did not provide the Veteran adequate notice and assistance with regard to her claim. However, given the favorable disposition thereof, explained below, the Board's decision to proceed in adjudicating it is nonprejudicial to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Analysis of Claim The basic facts in this case are not in dispute. The Veteran served, in part, on active duty in the Southwest Asia theater of operations from December 1990 to April 1991. Based on this service, by rating decision dated November 1996, the RO granted the Veteran service connection for multiple disabilities. By rating decision dated December 1996, the RO granted the Veteran a total disability rating based on individual unemployability. Effective from April 1995, the Veteran began receiving VA compensation benefits at the 100 percent rate based on her service-connected disabilities and the finding of individual unemployability. In May 2004, the Veteran was still receiving such benefits when the RO received notice from the Office of the Inspector General that the Veteran was the subject of an outstanding warrant that had been issued on December 1, 1998. In July 2004, based on this information, alone, the RO terminated the Veteran's VA compensation benefits, effective from December 27, 2001. In notifying the Veteran of its action, the RO explained to the Veteran that she was considered a fugitive felon. The Veteran took immediate action to clear the warrant in response to the RO's termination of her benefits. On September 8, 2004, a court issued an order dismissing the warrant and terminating the Veteran's case. Based on the order, the RO reinstated the Veteran's VA compensation benefits, effective from September 8, 2004. The RO's actions from July 2004 to September 2004 created an overpayment of VA compensation benefits, calculated in the amount of $72,205.93. In late September 2004, the Veteran requested a waiver of recovery of the overpayment, which the RO's Committee on Waivers and Compromises denied in August 2006. A Veteran eligible for compensation benefits may not be paid such benefits for any period during which he or she is a fugitive felon. 38 U.S.C.A. § 5313B (West 2002). "Fugitive felon" means a person who is a fugitive by reason of: (i) fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or (ii) violating a condition of probation or parole imposed for commission of a felony under the Federal or State law. "Felony" includes a high misdemeanor under the laws of a State which characterizes as high misdemeanors offenses that would be felony offenses under Federal law. 38 C.F.R. § 3.665(n) (2008). Based on VA Circular 28-04-02 dated October 6, 2004, the RO believes that a person who has an outstanding warrant for a felony offense is considered to be a "fugitive felon" whether or not he or she is literally fleeing. The Board disputes this interpretation of the law and, because it is not bound by department manuals or circulars, see 38 C.F.R. § 19.5 (2008), it is free to do so. Instead, the Board relies upon a different definition of "fugitive felon," one referenced by VA's Office of General Counsel (GC) and in federal case law. In addressing how fugitive felon status affected payment of VA benefits, GC noted that the VA fugitive felon provision was modeled after Public Law No. 104-193, which bars fugitive felons from receiving Supplemental Security Insurance from the Social Security Administration (SSA) and food stamps from the Department of Agriculture. GC also noted that Public Law No. 104-193 was designed to cut off the means of support that allows fugitive felons to continue to flee. VAOPGCPREC 7- 2002. SSA's fugitive felon provision is essentially identical to the VA provision cited above. See 42 U.S.C.A. § 1382(e)(4)(A). According to written statements the Veteran submitted during the course of this appeal and her hearing testimony, presented in October 2008, she first learned of the outstanding warrant when the RO terminated her benefits in July 2004. She explained that, in 1991, while living in Georgia, she was charged with theft by receiving (a friend stole a CD and camera, which were found in the Veteran's home) and placed on unsupervised probation. She was not required to pay probation fees or meet with a probation officer. Allegedly, she then moved to Florida, where Georgia transferred her case and probation was handled differently. The Veteran then began to pay probation fines and meet with a probation officer monthly. During this time period, she reportedly refrained from committing another crime and worked for the sheriff's department voluntarily as a first responder and in trauma intervention. She contends that, in 1998, her parole officer determined that there was no need to continue with probation proceedings and decided to transfer all pertinent paperwork back to Georgia, for dismissal of the Veteran's case. The Veteran further contends that, from 1998 to 2004, when the RO contacted her, she did not hear whether such action had been taken. She now believes that, when Georgia received her case, it decided that she should have to pay probation fees before dismissal. Instead of notifying her of this fact, however, it issued a warrant. Since then, the Veteran has tried to obtain copies of the warrant, including from Georgia and Florida, but personnel from both facilities have been unable to locate one and cannot explain the circumstances surrounding the issuance thereof. It did, however, promptly recommend dismissal after the Veteran paid all requested fees. The Veteran points out that, if she were a felon or a fugitive felon during the time period at issue, she would not have been permitted to begin working for the sheriff's office. She asserts that, when doing a background check, even that office found no evidence suggesting that the Veteran was a felon, fugitive or otherwise. She claims that, in notifying VA of the Veteran's fugitive felon status, the notification document failed to indicate whether Georgia was willing to extradite her for the alleged offense, which indicates that Georgia too was unaware of the warrant. In this case, there is absolutely no evidence of record indicating that the Veteran was convicted of a felony or violated the conditions of her parole or probation. Notification of the warrant lists the offense as obstructing justice, but the RO never obtained or attempted to obtain the actual warrant at issue in this appeal for confirmation purposes. See Garnes v. Barnhardt, 352 F. Supp. 2d 1059, 1066 (N.D. Cal. 2004); Hull v. Barnhart, 336 F. Supp. 2d 1113 (D. Or. 2004) (both holding that SSA's interpretation that the mere presence of a warrant is sufficient to establish fugitive felon status is in contradiction to the underlying statute and regulations applicable to SSA benefits). The notification of the warrant makes no mention of a felony and, as alleged, does not show that Georgia planned to extradite the Veteran for obstructing justice. In addition, after the Veteran expressed her concerns regarding this case, the RO did not follow up by trying to obtain any information, including from her parole officer in Florida, that might shed light on the circumstances surrounding the issuance of the warrant. The Veteran's account of the events surrounding the issuance of the warrant must have been valid, at least to a certain extent, because, not long after she challenged it, a court decided to dismiss the warrant and terminate her case. Given the foregoing, the only definition of "fugitive felon" that might apply in this case is the one involving a person fleeing to avoid prosecution for an offense or an attempt to commit an offense that is a felony under the laws of the place from which the person flees. To flee from prosecution, an individual would first have to know that he or she was facing prosecution. Oteze Fowlkes v. Adamec, 432 F.3d 90, 96-97 (2nd Cir. 2005) (referring to SSA's essentially identical fugitive felon provision and holding that the statute's use of the words "to avoid prosecution" confirms that for flight to result in a suspension of benefits, it must be undertaken with a specific intent to avoid prosecution). In this case, such is not the case. When the warrant was issued, the Veteran was living at the same address at which she had been living for years, the address on file in Georgia. There is no indication of record that the warrant at issue was served on her there, that an attempt was made to serve it on her at any location, or that she was aware of the warrant prior to July 2004, when the RO notified her of its existence. There is simply no evidence of record establishing that the Veteran received notice of, or otherwise knew, that she was going to be prosecuted or apprehended for any offense. Without actual notice, the Board cannot find that the Veteran engaged in an intentional act of fleeing from prosecution. Based on the foregoing, the Board finds that, at the time the RO terminated the Veteran's VA compensation benefits, there was insufficient evidence of record to show that the Veteran met the definition of fugitive felon. In light of this finding, the Board concludes that the RO improperly terminated the Veteran's VA compensation benefits for the period extending from December 27, 2001 to July 31, 2004, thereby resulting in an overpayment of VA compensation benefits, calculated in the amount of $72,205.93. ORDER The RO having improperly terminated the Veteran's VA compensation benefits for the period extending from December 27, 2001 to July 31, 2004, a waiver of recovery of a resulting overpayment of VA compensation benefits, calculated in the amount of $72,205.93, is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs