Citation Nr: 1422390 Decision Date: 05/19/14 Archive Date: 05/29/14 DOCKET NO. 09-00 339A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether an overpayment in benefits was properly created from October [redacted], 2005, to July [redacted], 2006; from February [redacted], 2007, to October [redacted], 2007; and from January [redacted], 2008, to March [redacted], 2008, based on the Veteran's status as a fugitive felon. (The issues of entitlement to increased ratings for posttraumatic stress disorder and bilateral knee disabilities, and entitlement to an earlier effective date for a finding that service-connected disability was total and permanent and entitlement to dependent's educational assistance, are addressed in a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to April 1992. This matter is on appeal from a July 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDING OF FACT The Veteran was a fugitive felon for VA purposes for the periods from October [redacted], 2005, to July [redacted], 2006; from February [redacted], 2007, to July [redacted], 2007; and from January [redacted], 2008, to February [redacted], 2008. CONCLUSION OF LAW An overpayment of disability compensation was properly created for the periods from October [redacted], 2005, to July [redacted], 2006; from February [redacted], 2007, to July [redacted], 2007; and from January [redacted], 2008, to February [redacted], 2008. 38 U.S.C.A. §§ 5103(a), 5103A, 5313B (West 2002 & Supp. 2013); 38 C.F.R. §§ 1.911, 3.665(n) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's claim involves the validity of a creation of an overpayment, under 38 U.S.C. Chapter 53. Therefore, the duty to notify and assist provisions do not apply. Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132 (2002); 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). Compensation is not payable on behalf of a veteran for any period during which the Veteran is a fugitive felon. A fugitive felon means a person who is a fugitive by reason of 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 violating a condition of probation or parole imposed for commission of a felony under the Federal or State law. 38 C.F.R. § 3.665(n) (2013). During the relevant period on appeal, the Veteran was service-connected for posttraumatic stress disorder (PTSD), bilateral knee disabilities, hypertension, and a number of other noncompensable disabilities. His combined service-connected disability rating was 60 percent until May 31, 2006, when it was increased to 100 percent. In February 2007, the RO was informed by the VA Office of the Inspector General that a warrant had been issued in Dallas, Texas, for the Veteran's arrest and he was considered a fugitive felon. After confirming that a warrant remained outstanding with the Dallas County Sherriff's Office, the RO sent a letter to the Veteran on March 12, 2007, informing him that his benefits would cease unless his status as a fugitive felon had been corrected. In a July 10, 2007, letter, the Veteran was informed by the RO that his benefits had been terminated, effective October [redacted], 2005. In view of that retroactive termination of benefits, the Veteran was informed on July 21, 2007, that had received an overpayment in benefits in the amount of $42,786.57. That calculated overpayment was modified pursuant to an April 29, 2008, letter from the Dallas County Department of Corrections (DOC), which informed the RO that the Veteran was a fugitive felon from May [redacted], 2006, to July [redacted], 2006; from February [redacted], 2007, to October [redacted], 2007; and from January [redacted], 2008, to March [redacted], 2008. The Veteran has disagreed only with the accuracy of those specific dates. While the evidence shows that there was a warrant in effect from October [redacted], 2005, to July [redacted], 2006, the Veteran has not submitted any evidence or disputed the dates of that warrant. The evidence of record shows that warrant was issued October [redacted], 2005, extended on May [redacted], 2006, and was not released until July [redacted], 2006. For the warrant in effect from May [redacted], 2006, to July [redacted], 2006, the only evidence in the record regarding the Veteran's status during that period of time was the April 29, 2008, letter from the DOC, which listed that period of time as having an arrest warrant was outstanding. It is clear from a court order that is of record that the Veteran was placed on probation beginning on April 7, 2006, so any violation of that probation would result in a warrant for his arrest. Significantly, the Veteran has not presented any evidence, either through documents or even his own statements, to indicate that the DOC was incorrect that he was a fugitive felon from May [redacted], 2006, to July [redacted], 2006. There is also no indication that VA was informed of his fugitive status. Although the Veteran sought treatment from a VA facility in both May 2006 and June 2006, he did not mention his fugitive felon status. Therefore, in the absence of evidence to the contrary, the Board concludes that the Veteran was a fugitive felon from October [redacted], 2005, to July [redacted], 2006, based on one warrant and from May [redacted], 2006, to July [redacted], 2006 based on another warrant. The Board finds that the other two periods of fugitive felon status on appeal require amendment. While the DOC indicated a period of outstanding warrant from February [redacted], 2007, to October [redacted], 2007, that is not corroborated by other evidence of record. In statements from September 18, 2007, and March 14, 2008, the Veteran admitted violating his probation on or about February [redacted], 2007. However, the evidence includes a court order from July [redacted], 2007, which shows that the Veteran was arraigned for violation of probation. The DOC report notwithstanding, it is clear that he was no longer a fugitive felon at that point because he was in custody of the jurisdiction that had issued the warrant for his arrest. Although the warrant does not appear to have been cleared until October [redacted], 2007, the Veteran was in the custody of the jurisdiction that issued the warrant as of July [redacted], 2007. Therefore, the Board concludes that the period of fugitive felon status should run only from February [redacted], 2007, to July [redacted], 2007, because the Veteran was no longer a fugitive from that warrant as of July [redacted], 2007. While the warrant may still have been in effect, he made a court appearance on that warrant and was arraigned and thus cannot be found to be a fugitive as of that date. As for the period of fugitive felon status from January [redacted], 2008, to March [redacted], 2008, for which the DOC indicated that a warrant was in effect from January [redacted], 2008, to March [redacted], 2008, the evidence of record also includes a report of contact with the Dallas County Jail in September 2009. According to that contact, the Veteran was incarcerated from February [redacted], 2008, to March [redacted], 2008. While there is no other official report of custody in the record, it is sufficient for the Board to conclude that period of status as a fugitive felon instead should end on February [redacted], 2008. As of February [redacted], 2008, the Veteran was no longer a fugitive. He was incarcerated by the same jurisdiction that had issued the warrant for his arrest. Despite that the warrant was not cleared until March [redacted], 2008, the Board finds that a person who is incarcerated following arrest based on a warrant cannot be said to be a fugitive from that warrant. VA has separate regulations involving the reduction of benefits for Veterans incarcerated for a felony that are independent of the rules for Veterans who are fugitive felons. 38 C.F.R. § 3.665(a) (2013). The Board finds that the Veteran was no longer a fugitive from an outstanding warrant as of February [redacted], 2008, the date he was incarcerated. Therefore, the Board finds that the appropriate dates of fugitive felon status for the Veteran are October [redacted], 2005, to July [redacted], 2006; February [redacted], 2007, to July [redacted], 2007; and January [redacted], 2008, to February [redacted], 2008. The preponderance of the evidence is against a claim that the Veteran was not a fugitive felon during those periods. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An overpayment of disability compensation was properly created, but only for the periods from October [redacted], 2005, to July [redacted], 2006; from February [redacted], 2007, to July [redacted], 2007; and from January [redacted], 2008, to February [redacted], 2008, and the amount of the overpayment is to be adjusted accordingly. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs