Citation Nr: 1423093 Decision Date: 05/21/14 Archive Date: 05/29/14 DOCKET NO. 07-37 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Was the debt that was created valid due to the decision to suspend the Veteran's benefits from December 27, 2001 to September 21, 2006 based upon fugitive felon status. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2010, the Board remanded the case for the Veteran to be scheduled for a Travel Board hearing. In June 2012 the Veteran failed to report for the Board hearing. A report of contact in April 2012 shows that the Veteran was no longer incarcerated and his representative in May 2014 verified that the Veteran was unable to attend the Board hearing. The claim was initially characterized as whether the decision to suspend the Veteran's benefits from December 27, 2001 to September 21, 2006 based upon fugitive felon status was correct and whether the overpayment created by the suspension of benefits based upon fugitive felon status was valid. As the two issues are intertwined the Board has combined them into one issue as reflected on the first page of this decision. The Board notes that the Veteran has been adjudicated as incompetent and, therefore, he has had various fiduciaries during the appeal period. As his fiduciaries have been prosecuting his appeal, his current fiduciary is indicated in the caption shown on the first page of this decision. The Virtual VA paperless claims processing system includes 691 documents, which include financial documents, correspondence, medical records, and documents from the Montana Fourth Judicial District Court in Missoula County. The Veterans Benefits Management System does not include any documents. FINDINGS OF FACT 1. A warrant for the arrest of the Veteran for a felony crime was issued on December [redacted], 1991. 2. In September 2006, the VA Regional Counsel informed the VA Area Legal Counsel that the Moon Valley Justice Court in Maricopa county, Arizona quashed the Veteran's warrant on September 21, 2006. 3. On January 29, 2007, the Superior Court of the State of Arizona in and for the county of Maricopa, signed an order quashing the December 1991 warrant and dismissed the case in February 2007. 4. In December 2007, VA informed the Veteran that he had a debt of $121, 604.39, of which $76,328.06 could be waived and the remaining amount of $45,328.06 could not be waived. 5. The evidence does not establish that the Veteran met the definition of a fugitive felon during the period from December 27, 2001 to September 21, 2006, as the evidence does not show that he was engaged in the intentional act of fleeing from prosecution, or custody or confinement after conviction, for a felony offense, or that he was in violation of a condition of probation or parole for a felony conviction. CONCLUSION OF LAW The Veteran did not meet the definition of a fugitive felon from December 27, 2001 to September 21, 2006 , and the debt created based on his fugitive felon status was therefore invalid. 38 U.S.C.A. § 5313B (West 2002); 38 C.F.R. § 3.665(n) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159 , amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the decision herein is entirely favorable to the Veteran, VCAA compliance need not be addressed. Analysis An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. 38 C.F.R. § 1.962. When VA has determined that a debt is owed based on such an overpayment, and once it has satisfied certain procedural requirements, it may collect the debt by offsetting current or future benefit payments until the debt has been repaid. See 38 C.F.R. § 5314 (West 2002); 38 C.F.R. §§ 1.911, 1.912a(a). The debtor, in turn, may challenge the validity or amount of the debt owed. See 38 C.F.R. § 1.911(c)(1). A veteran eligible for compensation benefits may not be paid such benefit for any period during which he is a fugitive felon. 38 U.S.C.A. § 5313B(a); 38 C.F.R. § 3.665(n)(1). The term fugitive felon means a person who is a fugitive by reason of: (A) 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 (B) violating a condition of probation or parole imposed for commission of a felony under Federal or State law. 38 U.S.C.A. § 5313B(b); 38 C.F.R. § 3.665(n)(2). There is no evidence or argument that the Veteran violated a condition of probation or parole. The question is therefore whether the Veteran was fleeing to avoid prosecution. In March 2007 the Veteran claimed that he did not have knowledge of an outstanding arrest warrant. The pertinent facts show that since July 1976 he has been in receipt of a 100 percent rating for schizophrenia and has been determined to be incompetent to handle disbursement of funds. Computer generated print-outs from Moon Valley Justice Court in Maricopa county, Arizona show that the Veteran on July 13, 1991 was in possession of marijuana. In October 1991 he failed to appear at the Northwest Phoenix Justice Court Precinct and a summons was issued. In November 1991 the summons was returned because the Veteran did not live at the address provided per the current resident. On December [redacted], 1991 an arrest warrant was issued. In April 2006, VA received the Veteran's felony arrest warrant dated on December [redacted], 1991 from Maricopa County Sheriff's Office in Phoenix, Arizona. In a letter dated September 22, 2006, the VA Regional Counsel informed the VA Area Legal Counsel that he confirmed that the Moon Valley Justice Court quashed the Veteran's warrant on September 21, 2006, and informed the Superior Court and the Arizona Department of Public Safety. On January 29, 2007, the Superior Court of the State of Arizona in and for the county of Maricopa, signed an order quashing the December 1991 warrant and dismissed the case in February 2007. In April 2007, the Maricopa County Sheriff's Office confirmed that the warrant was not quashed retroactively and remained active from December [redacted], 1991 to September 21, 2006. In the Statement of the Case dated in October 2007, the RO informed the Veteran that while he was a fugitive felon from December [redacted], 1991, the starting date of his fugitive felon status was December 27, 2001, which is the effective date of 38 U.S.C.A. § 5313B. The RO further informed him that while his benefits were resumed effective September 21, 2006, an adjustment may be necessary to amend the date of resumption of benefits as he was a fugitive felon from December 27, 2001 to January 29, 2007, the date his arrest warrant was quashed by the Superior Court. In December 2007, the Veteran was informed that the Committee on Waivers and Compromises considered his request of waiver of indebtedness of $121, 604.39 (plus interest) and determined that $76,328.06 could be waived and the remaining amount of $45,328.06 could not be waived. This decision was made based on a finding of both fault and hardship. In March 2007 the Veteran claimed that he did not have knowledge of the arrest warrant. As to whether one must have knowledge of a warrant in order to be considered a fugitive felon under 38 U.S.C.A. § 5313B(b)(1)(A), the statute, regulation, case law, and applicable VA Office of General Counsel (GC) opinion indicate that the answer to this question is in the affirmative. The Court has held that actual knowledge was not required for one who violates the conditions of probation under 38 U.S.C.A. § 5313B(b)(1)(B), but that is a different subsection of the statute than the one under which the Veteran falls, 38 U.S.C.A. § 5313B(b)(1)(A). See Mountford v. Shinseki, 24 Vet. App. 443, 448 (2011). More on point is a GC opinion, in which GC observed that the VA 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. It was noted that Public Law No. 104-193 ''was designed to cut off the means of support that allows fugitive felons to continue to flee." Id. The provisions of SSA's fugitive felon statute are essentially identical to the provisions of 38 U.S.C.A. § 5313B(b)(1) cited above. See 42 U.S.C.A. § 1382(e)(4)(A). In interpreting SSA's fugitive felon law, the United States Court of Appeals for the Second Circuit held that in order for a person to be fleeing prosecution, "there must be some evidence that the person knows his 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. Oteze Fowlkes v. Adamec, 432 F.3d 90, 97 (2d. Cir. 2005). Although not binding on VA, the Second Circuit's interpretation of SSA's fugitive felon statute as requiring knowledge of the warrant is persuasive and provides support for a similar finding with regard to subsection § 5313B(b)(1)(A) of VA's fugitive felon statute which was modelled after and contains language identical to SSA's version. In April 2007, the Veteran's former fiduciary denied he knew of the arrest warrant. The Board finds that the evidence does not support a finding of an intentional act of flight during the period of December 27, 2001 to September 21, 2006. First, the evidence shows that while the summons on November 1991 was undeliverable to the Veteran's address of record in Phoenix, Arizona, he continued to reside in Phoenix, Arizona, as a VA Adult Beneficiary Field Examination was conducted later that same month at his residence in Phoenix, Arizona. Second, the Veteran's pattern of changing residences is not indicative of a fugitive who was fleeing from the law but rather a disabled person who moved to be with his relatives. The Veteran initially lived in Montana, however he moved to Arizona to be with his family in 1990. See March 1990 proceedings before the Montana Fourth Judicial District Court in Missoula County. In 2007 he moved to Colorado to be with his daughter. See daughter's January 2010 statement. Third, in July 1993 the Montana Fourth Judicial District Court in Missoula County found that the Veteran violated his conditional release to continue outpatient psychiatric treatment and abstain from alcohol or non-prescribed drugs and ordered him to the Montana State Hospital at Warm Springs for the balance of a 5 year sentence. Fourth, records dated in October 1996 from Western Montana Mental Health Center show that the Veteran was seeing his psychiatrist monthly, therapist weekly, and case manager daily. Lastly, the Veteran is rated totally disabled due to his service-connected schizophrenia, indicating total occupational and social impairment. Indeed, since July 1976 he has been determined to be incompetent to handle disbursement of funds and has had a VA appointed fiduciary. The evidence shows that neither the Veteran nor his fiduciary were aware of the December 1991 arrest warrant. See statements from former fiduciary dated in September 2006 and April 2007. Moreover, as discussed above, there is no evidence to demonstrate that the Veteran took any action to avoid service of the warrant. Rather, in this case, the only evidence indicating that the Veteran was a fugitive felon was the existence of the warrant that was issued on December [redacted], 1991, Accordingly, the Board finds that there is no evidence of flight to avoid prosecution, or custody or confinement after conviction, and that the warrant was not for violation of probation or parole following a felony conviction. Thus, the Veteran was not a "fugitive felon" within the meaning of the applicable law and the suspension of VA disability compensation based on his fugitive felon status was not in accordance with the law. As VA disability compensation was not properly suspended, VA disability compensation should be restored other than the amount of debt that already has been waived. Lastly, the Board makes no determination as to whether there was a violation of parole issue, since such facts were not developed for the record. It is noted that in July 1993 the Montana Fourth Judicial District Court in Missoula County found that the Veteran violated his conditional release to continue outpatient psychiatric treatment and abstain from alcohol or non-prescribed drugs and ordered him to the Montana State Hospital at Warm Springs for the balance of a 5 year sentence. ORDER As the Veteran was not a fugitive felon from December 27, 2001 to September 21, 2006, his VA disability compensation during that period was improperly suspended, the debt that was created was not valid, and the appeal is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs