Citation Nr: 1412779 Decision Date: 03/26/14 Archive Date: 04/08/14 DOCKET NO. 11-21 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Propriety of the discontinuance of the Veteran's non-service-connected pension benefits from December 27, 2001, to April 6, 2010, based on fugitive felon status. 2. Entitlement to a waiver of recovery of an overpayment of non-service-connected pension benefits in the amount of $28,031.10, to include the validity of the debt. REPRESENTATION The Veteran is represented by: Maryann Zavez, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to January 1973. With respect to propriety of the discontinuance of the Veteran's non-service-connected pension benefits from December 27, 2001, to April 6, 2010, based on fugitive felon status, this matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 administrative decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center in Philadelphia, Pennsylvania, on behalf of the RO in White River Junction, Vermont. With respect to the issue of entitlement to a waiver of recovery of an overpayment of non-service-connected pension benefits in the amount of $28,031.10, to include the validity of the debt, this matter comes before the Board on appeal from a February 2011 administrative decision by the Regional Office and Insurance Center in Philadelphia, Pennsylvania, on behalf of the RO in White River Junction, Vermont. In making this determination, the Board observes that the Veteran was first notified of the overpayment of non-service-connected benefits in February 2010. Generally, when notice of indebtedness is dated on or after April 1, 1983, a request for waiver of indebtedness shall only be considered if the request is made within 180 days following the date of a notice of indebtedness by the VA to the debtor. 38 C.F.R. § 1.963(b) (2013). The Veteran did not request a waiver of overpayment until December 2010, which is more than 180 days after the February 2010 notice. Despite this, the Regional Office and Insurance Center in Philadelphia, Pennsylvania, issued the February 2011 administrative denial. The Veteran perfected an appeal thereafter. Given that the Veteran's appeal was treated as timely, including being provided a hearing with the undersigned Veterans Law Judge, the Board will not now address the timeliness issue and will consider the claim on its merits. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (holding that, because an issue was treated as if it were timely perfected for more than five years before being raised by the Board in the first instance, any issue concerning timely filing of the substantive appeal was waived by VA). In January 2012, the Veteran testified at a hearing with the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. Following the most recent adjudications of the above-captioned claims, the Veteran submitted relevant evidence for consideration, with a contemporaneous waiver of RO jurisdiction to review this evidence in the first instance. As such, the Board will consider this evidence herein. 38 C.F.R. § 20.1304 (2013). FINDINGS OF FACT 1. The RO received notice that a warrant was issued against the Veteran on September 14, 1988, by authorities in Brookline, Massachusetts, based on the offense of possession of an altered license, which was also referred to as forgery. This warrant was recalled on February 28, 2006. 2. On July 25, 1988, the Veteran was found guilty of driving under the influence of liquor, an offense that was committed on August 23, 1987. The Veteran was sentenced to one year probation, required to attend alcohol classes, his driver's license was suspended for 45 days, and he was required to pay a $15.00 fee. A "default" warrant was issued on December 2, 1988, for the Veteran's arrest by authorities in Stoughton, Massachusetts. This warrant was cancelled on April 6, 2010. 3. The Veteran has been charged with an overpayment of non-service-connected pension benefits in the amount of $28,031.10 due to fugitive felon status from December 27, 2001, to April 6, 2010. 4. From December 27, 2001, to April 6, 2010, with respect to the Brookline warrant, the Veteran was not fleeing to avoid prosecution or custody or confinement after conviction for a felonious offense, or attempting to commit a felonious offense, and was not violating a condition of probation or parole imposed for commission of a felony. 5. From December 27, 2001, to April 6, 2010, with respect to the Stoughton warrant, the Veteran was not fleeing to avoid prosecution or custody or confinement after conviction for a felonious offense, or attempting to commit a felonious offense, but was in violation a condition of probation or parole imposed for commission of a felony. 6. The failure of VA to insist upon its right to repayment would result in unjust enrichment of the Veteran, inasmuch as he accepted benefits to which he was not entitled, based on his fugitive felon status. 7. Collection of indebtedness would not defeat the purpose of the non-service-connected pension benefit program, or otherwise be inequitable. CONCLUSIONS OF LAW 1. The determination that the Veteran was a fugitive felon from December 27, 2001 to April 6, 2010, was proper. 38 U.S.C.A. §§ 5313, 5313B (West 2002); 38 C.F.R. § 3.666(e) (2013). 2. The criteria for waiver of recovery of the overpayment of non-service-connected pension benefits, in the amount of $28,031.10, have not been met. 38 U.S.C.A. §§ 5107, 5302 (West 2002); 38 C.F.R. §§ 1.963, 1.965 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The United States Court of Appeals for Veterans Claims (the Court) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Manning v. Principi, 16 Vet. App. 534, 542-3 (2002). In addition, the VA General Counsel has held that VA is not required under 38 U.S.C.A. § 5103(a) to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-04 (2004). With respect to the propriety of the discontinuance of the Veteran's non-service-connected pension benefits from December 27, 2001, to April 6, 2010, based on fugitive felon status, the issue before the Board is a legal one, as there is no dispute as to the essential facts required to resolve the matter. The outcome of the appeal is governed by the interpretation and application of the law and regulations, rather than by consideration of the adequacy of the evidence or resolving conflicting evidence. Accordingly, the notice and duty to assist provisions of the VCAA are inapplicable and no further development under the VCAA is required. With respect to the issue of entitlement to a waiver of recovery of an overpayment of non-service-connected pension benefits in the amount of $28,031.10, to include the validity of the debt, the Board notes that the VCAA notice and duty to assist provisions do not apply to such claims. See Barger v. Principi, 16 Vet. App. 132 (2002). At issue here is the validity of the $28,013.10 debt and, if valid, whether a waiver of the debt is warranted. The issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430 (1991). The VA General Counsel has reinforced this obligation by holding that where the validity of the debt is challenged, that issue must be developed before the issue of entitlement to a waiver of the debt can be considered. See VAOPGCPREC 6-98 (April 24, 1998). In order for the Board to determine that the overpayment was properly created and, thus, valid, it must be established that the Veteran was not legally entitled to the benefits in question, or, if there was no legal entitlement, then it must be shown that VA was solely responsible for the Veteran erroneously being paid benefits. Here, the RO found that the Veteran was overpaid non-service-connected pension benefits from December 27, 2001, to April 6, 2010, based on the determination that the Veteran was a "fugitive felon" during this period of time. This period of overpayment created a debt of $28,031.10. As such, the validity of the $28,031.10 debt is predicated on the propriety of the determination that the Veteran was a "fugitive felon" from December 27, 2001, to April 6, 2010. The Board will first address the whether the Veteran was properly deemed a "fugitive felon" from December 27, 2001, to April 6, 2010. On December 27, 2001, Congress enacted the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (Act). Section 505(a)(1) of the Act added 38 U.S.C.A. § 5313B , which provides that a Veteran who is otherwise eligible for a benefit under Chapter 11 of Title 38 may not be paid or otherwise provided such benefit for any period during which such Veteran is a fugitive felon. 38 U.S.C.A. § 5313B (West 2002). VA's Office of General Counsel has noted that the fugitive felon provision was modeled after Public Law No. 104-193, which barred fugitive felons from receiving Supplemental Security Insurance from the Social Security Administration (SSA) and food stamps from the Department of Agriculture. VAOPGCPREC 7-2002 (December 3, 2002). Public Law No. 104-193 "was designed to cut off the means of support that allows fugitive felons to continue to flee." Id. The SSA's fugitive felon provision is essentially identical to the VA provision cited above. See 42 U.S.C.A. § 1382(e)(4)(A). The term "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 Federal or State law. 38 C.F.R. § 3.666(e)(2). The term 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. § 3.666(3)(3). VA received notification that two warrants had been issued for the Veteran's arrest. The first warrant was issued on September 14, 1988, by authorities in Brookline, Massachusetts, based the offense of possession of an altered license, which was also referred to as forgery. The second warrant was issued on December 2, 1988, by authorities in Stoughton, Massachusetts, based on the offense of operating a vehicle under the influence of liquor. Both offenses are considered felonies under the Commonwealth of Massachusetts law. Although the warrants were issued prior to December 27, 2001, the laws regarding "fugitive felon" status were not effective until that date. Thus, December 27, 2001, is the proper start date for the beginning of the period for the Veteran's alleged "fugitive felon" status. The evidence of record demonstrated that the Brookline warrant was recalled on February 28, 2006, and that the Stoughton warrant was cancelled on April 6, 2010. Although the Veteran was able resolve the warrants, the RO determined that the Veteran's status as a "fugitive felon" from December 27, 2001, to April 6, 2010, remained. The RO then notified the Veteran that, based on this status, he had been overpaid non-service-connected pension benefits during this period of time, creating a debt of $28,031.10. The Veteran appealed this determination, claiming that he did not satisfy the regulatory definition of a "fugitive felon." Alternatively, he is seeking waiver of the overpayment. While the Veteran has not disputed the amount of overpayment in question, he has argued that the underlying creation of the debt, and thereby the overpayment itself, was improper. The Veteran asserts that he was unaware of the Brookline warrant until SSA notified him in August 2005. He also contends that he was unaware of the Stoughton warrant until he was notified of by VA in September 2009. The Veteran, therefore, contends that he was erroneously classified as a fugitive felon from December 27, 2001, to April 6, 2010. While "fugitive" is not specifically defined by the governing statute and regulation (38 C.F.R. § 3.666(e)), Black's Law Dictionary (8th Ed. 2004) defines "fugitive" as a person who flees or escapes; a refugee; or as a criminal suspect or a witness in a criminal case who flees, evades, or escapes arrest, prosecution, imprisonment, service of process, or the giving of testimony, especially by fleeing the jurisdiction or by hiding. Thus, to engage in an intentional act of fleeing from prosecution, custody or confinement, the Board finds that the Veteran would first have to know that he was facing prosecution, custody, or confinement. See 38 U.S.C.A. § 5313B(b)(1)(A); 38 C.F.R. § 3.666(e)(2)(i). The Board's finding that an individual must have at least some knowledge of prosecution before he can be found to be fleeing from such is consistent with the interpretation by several federal courts of the essentially identical SSA fugitive felon provision. In December 2005, the United States Second Circuit Court of Appeals found that, under that statute (42 U.S.C.A. § 1382(e)(4)(A), in order for a person to be fleeing prosecution there must be some evidence that the person knows her apprehension is sought. 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, i.e., to avoid prosecution. See Oteze Fowlkes v. Adamec, 432 F.3d 90, 96-97 (2nd Cir. 2005). Here, the evidence does not reflect that the Veteran was a fugitive felon within the intent of 38 C.F.R. § 3.666(e)(2)(i). See also 38 U.S.C.A. § 5313B(b)(1)(A). There is no objective evidence of record indicating that the Veteran was aware of the warrants prior to him receiving notice of them from SSA and VA. The mere presence of an outstanding warrant is insufficient to establish fugitive felon status for the purposes of fleeing to avoid prosecution, or custody or confinement after conviction..." Id.; see e.g., Garnes v. Barnhardt, 352 F. Supp. 2d 1059, 1066 (N.D. Cal. 2004) and Hull v. Barnhart, 336 F. Supp. 2d 1113 (D.Or. 2004) (finding that an intent to avoid prosecution was required for a fugitive felon finding under the SSA statute). Throughout the pendency of this appeal, including during the January 2012 Board hearing, the Veteran asserted that he was not aware that a warrant had been issued by the Brookline authorities until he received notice from SSA in August 2005. After receiving this notice, the Veteran stated that he contacted the Brookline authorities. The warrant was recalled, effective February 2, 2006. The evidence of record included a statement from a Brookline Assistant District Attorney, dated in March 2006, indicating the case against the Veteran had been dismissed prior to arraignment and, thus, it would not appear on his record. The record did not include evidence demonstrating that the Veteran was aware of the Brookline warrant until he was notified by SSA, and there was no evidence that he was fleeing to avoid prosecution, custody, or confinement. With respect to the Stoughton warrant, it is indicated that the underlying offense was operating a vehicle under the influence of liquor. This warrant further demonstrates that the Veteran was found guilty of the offense on July 25, 1988. More than four months after his conviction, for reasons not specified, a "default" warrant was issued on December 2, 1988. According to Commonwealth of Massachusetts law, a "default" warrant is issued when an individual fails to appear for a court date. The Veteran asserted that he was unaware of this default warrant until VA notified him of its existence. Upon learning of this warrant, the Veteran contacted the appropriate Stoughton authorities and rectified the situation. The default warrant was cancelled on April 6, 2010. There was no evidence demonstrating that the Veteran was aware of the Stoughton warrant prior to receiving notification from VA, and there was no evidence that he was fleeing to avoid prosecution, custody, or confinement. The Board finds the Veteran's statements and testimony about being unaware of the warrants to be credible. Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, he provided a consistent history of the circumstances and disposition of the warrants. In addition to being internally consistent, his statements concerning the warrant were also consistent with other evidence of record. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to assess the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Consequently, with respect to both the Brookline and Stoughton warrants, the Board finds that the Veteran does not meet the criteria of a "fugitive felon" from December 27, 2001, to April 6, 2010, under 38 U.S.C.A. § 5313B(b)(1)(A). 38 C.F.R. § 3.666(e)(2)(i); Oteze Fowlkes, 432 F.3d at 96-97. While the Veteran does not fall under 38 U.S.C.A. § 5313B(b)(1)(A), section 5313(b)(1)(B) may still be applicable. As cited above, the term "fugitive felon" is also defined as violating a condition of probation or parole imposed for the commission of a felony under Federal or State law. See also 38 C.F.R. § 3.666(e)(2)(ii). Actual knowledge that a warrant had been issued with respect to violating the condition of probation or parole is irrelevant and not part of the statutory requirement. Mountford v. Shinseki, 24 Vet. App. 443 (2011). Further, a conviction for a felony is not required to be considered a fugitive felon, because had Congress intended an adjudication of guilt to be necessary, the word "conviction" would have been used, mirroring the language of 38 U.S.C. § 5313B(b)(1)(A), rather than the word "commission." Id. at 448. Regarding the Brookline warrant, the evidence of record did not indicate that conditions of probation or parole had been imposed on the Veteran pursuant to the charged offense of possessing an altered license. Therefore, this definition of fugitive felon is inapplicable to the Brookline warrant. 38 U.S.C.A. § 5313(b)(1)(B); 38 C.F.R. § 3.666(e)(2)(ii). The Stoughton warrant demonstrated that the Veteran was arrested on August 23, 1987, for operating a vehicle under the influence of liquor, a charge on which he was arraigned the next day. On October 7, 1987, the Veteran requested a trial by jury. On July 25, 1988, the Veteran was found guilty of the offense and sentenced to general probation for one year, he was required to attend an alcohol program, his driver's license was suspended for 45 days, and he was required to pay a $15.00 fee. For reasons not specified, a "default" warrant was issued on December 2, 1988. As mentioned above, according to Commonwealth of Massachusetts law, a "default" warrant is issued when an individual fails to appear for a court date. After the Veteran learned that the default warrant was still outstanding, he contacted the appropriate Stoughton authorities in order to resolve the matter. According to the Veteran, the Stoughton authorities stated that the reason the default warrant was issued on December 2, 1988, was because he failed to pay the $15.00 fee. He submitted a photocopy of a money order in the amount of $15.00, made payable to the Stoughton Probation Department and dated on March 27, 2010. The Veteran also submitted a Notice of Warrant Cancellation issued by the Stoughton authorities, dated on April 6, 2010. The underlying reason that the warrant was issued and the basis for the cancellation were not contained in this notice. The December 2, 1988 default warrant was issued after the Veteran's July 25, 1988 conviction. The only evidence of record as to why the December 2, 1988 default warrant was issued by the Stoughton authorities is the Veteran's statement that he failed to pay the $15.00 fee. Accepting the Veteran's statement as true (and, thus, the salient facts are not in dispute), paying the $15.00 fee, as demonstrated by the Stoughton warrant, was a condition of the probation imposed upon him following the July 25, 1988 conviction on the offense of operating a vehicle under the influence of liquor, a felony. The fact that the fee is a condition of the Veteran's probation is evidenced by the money order. Specifically, after learning that the default warrant was still outstanding, the Veteran submitted the $15.00 money order to the Stoughton Probation Department. Consequently, failing to pay the $15.00 fee constituted a violation of a condition of the Veteran's probation. This violation was ongoing until he submitted the $15.00 money order, and the default warrant was cancelled on April 6, 2010. Even if the Veteran was unaware that the $15.00 fee was a condition of his probation, actual knowledge that he violated that condition of his probation and that the default warrant was issued is not for consideration with respect to this definition of "fugitive felon." Mountford, 24 Vet. App. at 448. Consequently, the Board finds that the Veteran was in violation of a condition of probation from December 27, 2001, to April 6, 2010, for a felony conviction and, thus, the determination that he was a fugitive felon under 38 U.S.C.A. § 5313(b)(1)(B) was proper. 38 C.F.R. § 3.666(e)(2)(ii). As mentioned above, the only evidence of record as to why the December 2, 1988 warrant was issued was the Veteran's statement that he failed to pay the $15.00 fee. Even if the Board were to reject this statement, the propriety of the finding regarding his fugitive status from December 27, 2001, to April 6, 2010, remains unchanged. The very nature of a default warrant under Commonwealth of Massachusetts law indicates that the Veteran failed to appear for a court date. As demonstrated by the December 2, 1988 default warrant, the Veteran was on probation from July 25, 1988 to July 25, 1989. Thus, his failure to appear for a court date occurred during his probationary period. The purpose and nature of this court date are unimportant. The Veteran was required to appear at the court subsequent to the July 25, 1988 felony conviction, and he failed to do so. Again, even if the Veteran was unaware that he was required to appear at the court as part of his probation, actual knowledge that he violated that condition of his probation and that the default warrant was issued is not for consideration with respect to this definition of "fugitive felon." Mountford, 24 Vet. App. at 448. Thus, the Board again finds that the Veteran was in violation of a condition of probation from December 27, 2001, to April 6, 2010, for a felony conviction and, thus, the determination that he was a fugitive felon under 38 U.S.C.A. § 5313(b)(1)(B) was proper. 38 C.F.R. § 3.666(e)(2)(ii). Given that the Board has found that the determination that the Veteran was a fugitive felon from December 27, 2001, to April 6, 2010, was proper, he had no legal entitlement to non-service-connected pension benefits during that period of time. Thus, the $28,031.10 debt was properly created and is valid. The Board will now address whether waiver of overpayment of non-service-connected benefits is warranted. According to the applicable law and regulations, recovery of overpayments of any benefits made under the laws administered by VA shall be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the person or persons having an interest in obtaining the waiver, and if the recovery of the indebtedness from the payee who received such benefits would be against equity and good conscience. 38 U.S.C.A. § 5302; 38 C.F.R. §§ 1.962, 1.963(a), 1.965. The phrase "equity and good conscience" means the arrival at a fair decision between the obligor and VA. In making this determination, consideration will be given to the following elements (which are not intended to be all-inclusive): (1) fault of the Veteran; (2) balancing of faults between the Veteran and VA; (3) undue hardship of collection on the Veteran; (4) defeat of the purpose of an existing benefit to the Veteran; (5) unjust enrichment of the Veteran, and (6) whether the Veteran changed positions to his detriment in reliance upon a granted VA benefit. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.965(a). The standard of "equity and good conscience" will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of VA's rights. The decision reached should not be unduly favorable or adverse to either side. 38 C.F.R. § 1.965(a); see also Ridings v. Brown, 6 Vet. App. 544, 546 (1994). The Board finds no evidence of fraud, misrepresentation, or bad faith on the part of the Veteran in the creation of the overpayment, thus removing any legal impediment to the granting of a waiver in this matter. The question now before the Board is whether the facts dictate that a waiver should be granted under the standard of "equity and good conscience." With respect to the fault of the Veteran in the creation of the debt, he was arrested, arraigned, underwent a trial by jury, and convicted of operating a vehicle under the influence of liquor. It is reasonable to assume, given that he went through a trial, he was represented by counsel. It is also reasonable to assume that the Veteran was, at the time of his conviction, informed by the court and his counsel of all the conditions of his probation, including the payment of fees and subsequent court dates. Ultimately, it is the Veteran's responsibility to adhere to the conditions of his probation. His failure to do so triggered the issuance of the default warrant. VA shares no fault in the Veteran's noncompliance with the imposed probation conditions. The Board acknowledges that the default warrant was issued by the Stoughton authorities on December 2, 1988. The Veteran was not awarded VA non-service-connected pension benefits until July 29, 1993. Further, the fugitive felon laws were not effective until December 27, 2001, approximately 13 years after the default warrant was issued. Regardless of the change in laws, VA did nothing to cause the debt. Again, the debt was created because the Veteran failed to satisfy the conditions of his probation. With respect to undo hardship on the Veteran if collection of the debt was effectuated, Veteran submitted a financial status report, dated in December 2010, wherein he indicates that his monthly expenses (rent, food, utilities, phone, cable, health insurance/medication, and personal items) amounted to $860.00. He further indicated that his monthly income from SSA disability benefits was $660.00, and VA non-service-connected pension of $325.00, for a total of $985.00. Thus, the Veteran indicated that his net monthly income was $125.00 after expenses. A December 2012 letter to the Veteran from VA indicated that, due to a cost of living adjustment, his monthly VA non-service-connected pension benefits were $344.00, effective December 1, 2012. Assuming all of the other figures remained the same, the Veteran's net monthly income after expenses were $144.00. In the February 2010 letter to the Veteran notifying him that a debt had been created due to overpayment of his non-service-connected pension benefits, VA informed him that, if he could not satisfy the total debt, VA would work with him to establish a monthly payment program that would satisfy the debt in a reasonably timeframe. Given that the Veteran's basic needs (add additional, personal items) are paid for and he has a net monthly profit, the Board finds that collection of the debt would not impose upon him an undue hardship. 38 C.F.R. § 1.965(a)(3). The Veteran would be unjustly enriched if the benefits were not recovered since, failure to make restitution would result in unfair gain to the Veteran, as he was erroneously paid pension benefits to which he was not legally entitled. The collection of the debt would not defeat the purpose of an existing benefit. The only existing VA benefit the Veteran is currently receiving is the non-service-connected pension. This benefit is provided to veterans who, among other things, served for a sufficient period of time on active duty during a period of war. These benefits are intended to assist them with non-service-connected disability. Recouping overpayment of these benefits would not defeat the purpose thereof. The Veteran did not assert, and the evidence of record did not otherwise support finding, that he encumbered himself to his detriment in reliance upon the full amount of his non-service-connected pension benefits. In sum, the Board concludes that the negative evidence outweighs the positive evidence and that the facts in this case do not demonstrate that the recovery of the overpayment would be against equity and good conscience. 38 U.S.C.A. § 5107(b). Financial hardship is not shown, the overpayment is the fault of the Veteran and not the fault of VA, and the Veteran would be unjustly enriched if he were allowed to keep non-service-connected pension benefits to which he was not entitled. In essence, the factors of equity and good conscience are not in the Veteran's favor. ORDER The termination of pension benefits due to status as a fugitive felon from December 27, 2001, to April 6, 2010, was proper and the appeal is denied. Entitlement to waiver of recovery of an overpayment of non-service-connected pension benefits in the amount of $28,031.10 is denied ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs