Citation Nr: 0809848 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-35 855A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether the amount of the appellant's overpayment was validly created for the period from June 17, 2003 to September 20, 2004. 2. Whether the amount of the overpayment was validly created for the period from January 16, 2005 to May 1, 2006, based on incarceration beginning November [redacted], 2004, including the questions of whether there was administrative error of failure to pay full compensation benefits for February and March 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and his wife INTRODUCTION The veteran served on active duty from August 1966 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Committee on Waivers and Compromises (the Committee) of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2007, the veteran appeared and testified at a personal hearing before the undersigned Acting Veterans Law Judge sitting at Muskogee, Oklahoma. A transcript of that hearing has been made a part of the record. The Board notes that, although this claim was developed as four separate issues, some of the issues are in fact ancillary questions or aspects of the validity of creation of debt issues indicated above based on two different time periods. For this reason, and without prejudice to the veteran, the Board has consolidated the ancillary questions regarding administrative error and payments, and has restyled the issues as listed above. The issues of whether the amount of the overpayment was validly created for the period from January 16, 2005 to May 1, 2006, based on incarceration beginning November [redacted], 2004, including the questions of whether there was administrative error of failure to pay full compensation benefits for February and March 2006, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The veteran did not flee to avoid prosecution, custody, or confinement after conviction for an offense that is a felony under the laws of Missouri, for the period from June 17, 2003 to September 20, 2004. 2. The veteran was not incarcerated for a felony for the period from June 17, 2003 to September 20, 2004; incarceration for a felony conviction began on November [redacted], 2004. CONCLUSION OF LAW The overpayment of disability compensation benefits for the period from June 17, 2003 to September 20, 2004, based on a finding that the veteran was a fugitive felon, was not properly created, and the overpayment is not a valid indebtedness. 38 U.S.C.A. §§ 5302, 5313B (West 2002 & Supp. 2007); 38 C.F.R. §§ 1.962, 1.963, 1.967, 1.981, 3.665 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance As provided for by the Veterans Claims Assistance Act of 2000, the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, Veterans Claims Assistance Act of 2000 notice is not required because the issue presented involves the creation of an overpayment of VA benefits. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (The notice and duty to assist provisions of the VCAA do not apply to chapter 53 waiver of recovery matters, as chapter 53 already contains its own notice provisions. The VCAA provisions are relevant to a different chapter of title 38, i.e., Chapter 51, and do not apply to waiver matters.). Validity of Creation of Overpayment Debt (June 17, 2003 to September 20, 2004) The veteran has been charged with indebtedness to the government for the period from June 17, 2003 to September 20, 2004 based on a report from law enforcement that the veteran was a fugitive felon during this time. Under applicable statutory criteria, a veteran eligible for compensation benefits may not be paid such benefit for any period during which he is a fugitive felon. 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 (West 2002 & Supp. 2007); 38 C.F.R. § 3.665(n)(2) (2007). The regulation implementing this statutory provision provides that compensation is not payable on behalf of a veteran for any period during which he or she is a fugitive felon. "Fugitive felon" is defined as 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) (2007). In addressing how fugitive felon status affects payment of VA benefits to dependents, VA's Office of General Counsel has noted that VA's fugitive felon provision was modeled after Public Law No. 104-193, which barred fugitive felons from receiving Supplemental Security Insurance from the U.S. Social Security Administration and food stamps from the Department of Agriculture. VAOPGCPREC 7-2002. VA General Counsel has also noted that Public Law No. 104-193 was designed to cut off the support that allows fugitive felons to continue to flee. See 42 U.S.C.A. § 1382(e)(4)(A) (West 2002). 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, 96-97 (2nd Cir. 2005). In this case, the veteran and his wife have credibly testified that in June 2003 he lived in Brooklyn, Iowa; he committed a traffic violation in the nature of operating while impaired in June 2003 while in Butler County, Missouri; he had posted bond and retained an attorney to resolve the initial traffic offense, had paid the attorney money, and thought that the attorney had taken care of the ticket; he was unaware of the issuance of a warrant for his arrest; and that, after he found out about the outstanding warrant for the June 2003 traffic offense, he had another attorney who was representing him in 2004 to take care of the June 2003 traffic ticket, for which the veteran served 10 days in jail as part of punishment; he maintained a band account in Brooklyn, Iowa; and he received direct deposits into that account from VA for disability compensation payments. The veteran's assertions that he was not a fugitive felon during the period from June 17, 2003 to September 20, 2004 is further supported by the fact that there is no evidence that the underlying traffic offense (indicated to be operating while impaired) was a felony under Missouri law or a high misdemeanor under Missouri law that would be a felony under Federal law. The veteran also performed other acts such as banking using his home address in Brooklyn, Iowa, and returned on occasion to Butler County, Missouri, that indicate that he was not fleeing to avoid prosecution, custody, or confinement. In addition, the evidence does not show that there was an underlying conviction from which the alleged fleeing subsequently occurred. It appears from the report of law enforcement that the "fugitive felon" warrant was issued based on failure to appear in court on the relatively minor "traffic offense" rather than on the basis either that the underlying offense was a felony or that the veteran had been convicted of a felony offense. For these reasons, the Board finds that the veteran did not flee to avoid prosecution, custody, or confinement after conviction for an offense that is a felony under the laws of Missouri, for the period from June 17, 2003 to September 20, 2004. 38 U.S.C.A. § 5313B; 38 C.F.R. § 3.665. The evidence also shows that the veteran was not incarcerated for a felony conviction until November [redacted], 2004. Consequently, the overpayment of disability compensation benefits for the period from June 17, 2003 to September 20, 2004, based on a finding that the veteran was a fugitive felon, was not properly created, and the overpayment is not a valid indebtedness. ORDER The overpayment was not validly created for the period from June 17, 2003 to September 20, 2004, and waiver of overpayment based on this period is granted. REMAND In light of the Board's decision finding that the amount of the appellant's overpayment was not validly created for the period from June 17, 2003 to September 20, 2004, the amount of remaining overpayment based on the period of reduced compensation benefits from January 16, 2005 (based on incarceration beginning November [redacted], 2004) needs to be recalculated. A modified audit should be undertaken that reflects no overpayment creation for the period from June 17, 2003 to September 20, 2004. The veteran's representative has requested an audit that includes a chronological listing of payments actually made to the veteran. Because the issues include whether the amount of overpayment of compensation benefits was properly created, and whether the overpayment debt was properly reduced by withholding of compensation benefits to repay the overpayment, it is important that the monetary calculations that support the overpayment amount are evident in a format that can be understood by a VA adjudicator, and can be explained to the veteran. Accordingly, the case is REMANDED for the following action: 1. The RO should set forth in the record a written audit of the appellant's compensation benefits account for the relevant period from June 17, 2003 to the present. Such audit should include the period from January 16, 2005 to May 1, 2006, based on incarceration beginning November [redacted], 2004; should reflect whether compensation benefits for February and March 2006 were in fact paid to the veteran; and should reflect how subsequent compensation benefits that were withheld were applied toward the reduction of overpayment debt. A copy of the written audit should be inserted into the claims file and another provided to the appellant. 2. After completion of the above, the case should be referred to the Committee to review the record, including any additional evidence obtained on remand. The Committee should readjudicate the remaining issue of whether the amount of the overpayment was validly created for the period from January 16, 2005 to May 1, 2006, based on incarceration beginning November [redacted], 2004, including ancillary questions of whether there was administrative error of failure to pay full compensation benefits for February and March 2006, and whether the correct amount of the subsequent withholding of compensation was applied toward reduction of the appellant's overpayment debt. If the Committee's determination remains unfavorable to the veteran, he and his representative should be furnished a supplemental statement of the case, which sets forth and considers all of the applicable legal criteria pertinent to this appeal. When the above development has been completed, the veteran and his representative should be afforded the opportunity to respond. The purposes of this remand are to comply with due process of law and to further develop the veteran's claim. No action by the veteran is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs