Citation Nr: 1117907 Decision Date: 05/10/11 Archive Date: 05/17/11 DOCKET NO. 07-06 320 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to nonservice-connected pension benefits. ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision by the above VA RO, which denied entitlement to nonservice-connected pension benefits. This issue was remanded by the Board for further development in January 2009. The Board notes that the Veteran submitted copies of information regarding VA benefits after the most recent supplemental statement of the case (SSOC) was issued with respect to this claim. However, as these documents merely reiterate information relating to Veterans' benefits regulations that have been in effect and considered throughout the processing of this appeal, the Board may proceed to adjudicate this claim with no prejudice to the Veteran. FINDINGS OF FACT 1. The Veteran has been imprisoned at a state penal institution as a result of conviction of a felony since January 1974. 2. At the time of his incarceration, the Veteran was not in receipt of VA pension benefits. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits have not been met. 38 U.S.C.A. § 1505(a) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.3, 3.666 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-2097 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002). The United States Court of Appeals for Veterans Claims (Court ) has held, however, that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also Valiao v. Principi, 17 Vet. App. 229, 232 (2003) ('Where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the outcome of the decision.'). The Board notes that resolution of this appeal is based on facts that are not in dispute, and dependent solely on interpretation of the statutes and regulations pertaining to eligibility for nonservice-connected pension benefits based on his incarceration. VA has no further duty, therefore, to notify the Veteran of the evidence needed to substantiate his claim, or to assist him in obtaining that evidence, because no reasonable possibility exists that any further assistance would aid him in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). In any event, the Veteran has had the opportunity to provide further pertinent evidence and information on the claim in response to the February 2007 statement of the case (SOC) and the June 2007 supplemental statement of the case (SSOC). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under the provisions of 38 U.S.C.A. § 1521, pension is payable to a Veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities which are not the result of the Veteran's willful misconduct. 38 C.F.R. § 3.3 provides that basic entitlement to pension exists if a Veteran served in the active military, naval, or air service for 90 days or more during a period of war; or served in the active military, naval, or air service during a period of war and was discharged or released from such service for a service-connected disability; or served in the active military, naval, or air service for a period of 90 consecutive days or more and such period began or ended during a period of war; or served in the active military, naval, or air service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a)(3) (2010). The Veteran contends that he is entitled to nonservice-connected pension benefits based on his active duty service, despite his current incarceration. In the alternative, the Veteran also appears to be contending that he should be entitled to an apportionment of nonservice-connected pension benefits. The Veteran has been imprisoned since 1974. This fact is not in dispute. The Veteran submitted his claim for entitlement to nonservice-connected pension benefits in March 2006. Applicable law and regulations indicate that no pension under public or private laws administered by VA shall be paid to or for an individual who has been imprisoned in a Federal, State, or local penal institution as a result of conviction of a felony or misdemeanor for any part of the period beginning sixty-one days after such individual's imprisonment begins and ending when such individual's imprisonment ends. 38 U.S.C.A. § 1505(a); 38 C.F.R. § 3.666; see also Lanham v. Brown, 4 Vet. App. 265 (1993). Therefore, as the Veteran has clearly been imprisoned for over 60 days, entitlement to nonservice-connected pension benefits or an apportionment of nonservice-connected benefits is precluded by law in this case. The Veteran has submitted extensive argument as to why he believes it is essentially unconstitutional to deprive him of nonservice-connected pension benefits to which he believes he is entitled. Specifically, the Veteran argued in a March 2010 statement, and in several other statements, that, when drafted, he elected to serve 3 years based on then-vested benefits that were allotted to him, to include a pension at the age of 65. He asserts that this "contract" was fulfilled in 1969 with his honorable discharge. The Veteran further asserts that the law changed vested rights and contractual obligations in 1981, deleting any VA benefits, to include pension, to those incarcerated. He essentially argues that to apply 1981 changes retroactively to agreements or contracts entered into prior to 1981 is an ex post facto application of new law and therefore is unconstitutional. He asserts that his right to VA pension benefits was established by his service ending in 1969, and these rights cannot be abolished retroactively. The Board observes that, in Saunders v. Brown, 4 Vet. App. 320, 326 (1993), the Court noted that '[a]dministrative agencies are entitled to pass on constitutional claims but they are not required to do so.' [Quoting Plaquemines Port v. Federal Maritime Comm'n, 838 F.2d 536, 544 (D.C. Cir. 1988)]. See also Suttman v. Brown, 5 Vet. App. 127, 139 (1993) (noting that the 'Board is free to express an opinion on the appellant's constitutional claim). To the extent that it believes this question is sufficiently addressed by prior caselaw, the Board will discuss the Veteran's ex post facto contentions. The Board notes that the United States Court of Appeals for the Federal Circuit has held that there is a strong presumption of constitutionality attending laws providing for governmental payment of monetary benefits. See Talon v. Brown, 999 F.2d 514 (Fed. Cir. 1993) cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 601, 114 S. Ct. 643 (1993). This presumption has been held to apply to claims for Veterans' benefits. See, e.g., Cleland v. National College of Business, 435 U.S. 213, 221 (1978) (per curiam) (Congress has broad power to make decisions concerning how Veterans benefits should be administered). With regard to ex post facto laws in particular, Federal Courts have held that to be ex post facto, a law must impose punishment for past acts which were not so punishable at the time they were performed. See Jensen v. Schweiker, 709 F.2d 1227, 1230 (8th Cir. 1983). The Federal Courts have also held that suspension of a noncontractual benefit is not considered a punishment, thus such a law is not considered an ex post facto law. See Jensen v. Heckler, 766 F.2d 383, 386 (8th Cir. 1985), cert. denied, 474 U.S. 945 (1985). The specific constitutional question at issue in this case is essentially addressed in Latham v. Brown, 4 Vet. App. 265 (1993), aff'd 11 F.3d 1070 (Fed. Cir. 1993) (table). That case involved the reduction of benefit payments to Veterans who were incarcerated felons under 38 U.S.C.A. § 1505(a) and 38 C.F.R. § 3.666. The Court noted that 'in order to demonstrate a constitutional violation, appellant must show that the classification is arbitrary or does not bear any rational relationship to a legitimate government interest.' Latham, 4 Vet .App. at 267. The Court observed that, according to the legislative history, Congress believed persons who were incarcerated were already charges of the public and did not require additional monetary benefits. The legislative history also reflected an intention 'to prevent prisoners from being able to purchase contraband, particularly narcotics.' Id. at 268. The Court therefore concluded that the statute and regulation cited above were not ex post facto laws or bills of attainder and did not violate the Fifth Amendment of the Constitution. Therefore, there is no authority the Board can find to overturn or ignore the statute and regulation at issue in this case as promulgated. Further, the Veteran has argued that he is aware that other Veterans receive benefits while incarcerated. The Board acknowledges that laws and regulations provide that the amount payable during a period of incarceration, where involving a Veteran with a service-connected disability evaluation of 20 percent or more is the rate of compensation payable under 38 U.S.C.A. § 1114(a), which generally corresponds to a 10 percent rating. The amount payable where involving a Veteran with a service-connected disability evaluation of less than 20 percent is one-half the rate of compensation payable under 38 U.S.C. 1114(a). 38 U.S.C.A. § 5313(a); 38 C.F.R. § 3.665(d). However, as the Veteran is claiming entitlement to nonservice-connected pension benefits, as opposed to service-connected disability benefits, these regulations do not pertain to the Veteran's claim on appeal. Again, the Board notes that no pension under public or private laws administered by VA shall be paid to or for an individual who has been imprisoned in a Federal, State, or local penal institution as a result of conviction of a felony or misdemeanor for any part of the period beginning sixty-one days after such individual's imprisonment begins and ending when such individual's imprisonment ends. Regardless of the regulations pertaining to reduction of service-connected disability benefits during periods of incarceration, nonservice-connected pension benefits in any amount are prohibited by law from being paid to Veterans beyond 60 days of incarceration. Moreover, in light of the Veteran's statements and arguments, the Board would like to point out that HR 1291, the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001), made changes to 38 C.F.R. § 3.665. (Public Law 107-103). Prior to changes made by Public Law 107-103, a Veteran who was serving a period of incarceration for conviction of a felony before October 7, 1980, was not subject to a reduction of benefits if such benefits were approved before October 1, 1980. Public Law 107-103 expanded the application of 38 U.S.C.A. § 5313 and 38 C.F.R. § 3.665 to include Veterans who, on October 7, 1980, were incarcerated in a Federal, State, or local penal institution for a felony committed before that date, and who remained so incarcerated for a conviction of that felony as of December 27, 2001. 38 C.F.R. § 3.665(c)(3). Public Law 107-103, by its very terms, expressly expands application of the laws pertaining to the reduction of benefits for incarcerated Veterans to those who were in prison and in receipt of benefits prior to October 7, 1980. There is no provision grandfathering this very class of Veterans into exemption from a reduction of benefits. Nor does this law otherwise exempt certain Veterans from its provisions. More importantly, the Board again notes that the claim on appeal is for pension benefits, not disability compensation benefits. As such, 38 C.F.R. § 3.666 is the relevant regulation for addressing the Veteran's claim, not 38 C.F.R. § 3.665. While the Veteran has repeatedly referred to 1981 changes to regulations he believes to be relevant, the Board reiterates that, as the Veteran's claim is a claim for pension benefits and not disability compensation benefits, the controlling regulation in this case is 38 C.F.R. § 3.666, which has remained essentially unchanged in pertinent parts since the Veteran entered active duty in 1966. In conclusion, as the Veteran has clearly been imprisoned for over 60 days, entitlement to nonservice-connected pension benefits or an apportionment of nonservice-connected benefits is precluded by law. In this case, the law is dispositive; this claim must be denied for lack of legal merit under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs