Citation Nr: 1122127 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 07-39 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Propriety of the termination of the Veteran's disability compensation benefits from October 31, 2005, to March 15, 2007, based on fugitive felon status. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his wife, and a niece ATTORNEY FOR THE BOARD Dan Schechter INTRODUCTION The Veteran served on active military duty from June 1970 to January 1972. The appeal comes before the Board of Veterans' Appeals (Board) from a June 2007 letter decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, terminating the award of benefits compensation for the interval from October 21, 2005, through March 15, 2007, based on fugitive felon status. In the course of appeal, in July 2010, the Veteran testified at a Travel Board hearing conducted at the RO before the undersigned Acting Veterans Law Judge. A transcript of that hearing is contained in the claims file. FINDINGS OF FACT 1. In May 2005 a Copperas Cove, Texas, police officer prepared a report for a felony criminal offences alleged to have been committed by the Veteran. The Veteran had knowledge of the police report, having provided a written statement to a police officer for purposes of the report. 2. In October 2005, the Coryell County, Texas, 52nd District Court issued a warrant to arrest the Veteran and bring him to that Court to answer a State of Texas felony criminal indictment. 3. The VA Office of Inspector General (OIG) Fugitive Felon Program discovered the outstanding warrant for the Veteran's arrest, and the RO issued a March 7, 2007, letter to the Veteran informing him of his non-eligibility for benefits over the interval in which he was a fugitive, based on the outstanding Coryell County warrant for his arrest. 4. The Veteran shortly thereafter in March 2007 resolved the matter with Coryell County, with recall of the warrant for his arrest based on dismissal of the criminal charges against him. 5. No evidence has been present to support active pursuit of the Veteran by Coryell County police or other authorities in fulfillment of the October 2005 arrest warrant, and none has been presented that the Veteran was actively fleeing or otherwise actively avoiding that arrest. 6. The Veteran and his wife provided credible testimony that the Veteran had remained in residence in their home during the interval from October 31, 2005, through March 15, 2007, and the Veteran did not flee or otherwise actively endeavor to avoid arrest pursuant to the October 2005 Coryell County, Texas, 52nd District Court warrant, during that interval from October 31, 2005, through March 15, 2007. Correspondence and other evidence of record indicates that the Veteran resided at the same address during that time period. CONCLUSION OF LAW The Veteran was not a fugitive felon from October 31, 2005, through March 15, 2007, and the termination of his disability compensation was improper. 38 U.S.C.A. § 5313B (West 2002); 38 C.F.R. § 3.665(n) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Because the Veteran's claim is being granted in full, VA's statutory and regulatory duties to notify and assist are deemed fully satisfied. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). A veteran who is otherwise eligible for certain VA benefits 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(a) (West 2002); 38 C.F.R. § 3.665(n) (2010). Likewise, a veteran's dependent may not be paid otherwise provided benefits for any period during which such veteran or such dependent is a fugitive felon. 38 U.S.C.A. § 5313B(a); 38 C.F.R. § 3.665(n). 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 Federal or State law. 38 U.S.C.A. § 5313B(b)(1); 38 C.F.R. § 3.665(n). A 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 U.S.C.A. § 5313B(b)(2); 38 C.F.R. § 3.665(n). Although the term fugitive is not specifically defined by the governing statute and regulation, 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. 38 U.S.C.A. § 5313B (Section 5313B) was patterned 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 (Dec. 3, 2002). Public Law No. 104-193 "was designed to cut off the means of support that allows fugitive felons to continue to flee" and it was the intent of Congress to deny fugitives the means to maintain themselves in that status. VAOPGCPREC 7-2002 (Dec. 3, 2002). Public Law No. 104-193, however, did not permit SSA to conclude simply from the fact that there is an outstanding warrant for a person's arrest that he is "fleeing to avoid prosecution," and that there must have been some evidence that the person knew his apprehension was sought. Oteze Fowlkes v. Adamec, 432 F.3d 90, 96-97 (2d Cir. 2005). Public Law No. 104-193 has been construed to imply an intent requirement and the term "fleeing from justice" was noted to have "generally been interpreted to mean a flight with intent to avoid or frustrate prosecution." United States v. Rivera-Ventura, 72 F.3d 277, 280 (2d Cir. 1995); Jhirad v. Ferrandina, 486 F.2d 442, 444 (2d Cir. 1973). In a Notice of Social Security Acquiescence Ruling in April 2006, see 71 Fed. Reg. 17,551-17,552 (April 6, 2006), the SSA noted the holding of the court and stated that it could not conclude that an individual was fleeing to avoid prosecution, custody, or confinement from the mere fact that there was an outstanding felony arrest warrant or similar order. Based on this relevant antecedent history of the law and regulation, and based on relevant case law, the Board here considers the element of intent to be integral to the question of fugitive status, and hence will require a preponderance of evidence favoring the conclusion that an intent to flee justice was present upon the interval for which fugitive felon status is at issue, to support a termination of benefits over that interval under 38 C.F.R. § 3.665(n). In determining the weight to be assigned to evidence, including lay statements by the Veteran or other parties, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In this case, according to a Copperas Cove, Texas, Police Department case report dated in May 2005, the Veteran was involved in an incident on the date of that report. The report lists the Veteran as a suspect, with the alleged crimes at issue classified as felony/misdemeanors, with the Veteran then providing a written statement to the police officer. The fact that he provided a written statement to the officer informs of the Veteran's knowledge, at minimum, of criminal charges or potential criminal charges. The claims file contains an October 2005 Coryell County, Texas, 52nd District Court warrant to arrest the Veteran and bring him to that Court to answer a State of Texas indictment, with the charge of endangering a child. The record also contains a VA Office of Inspector General (OIG) Fugitive Felon Program document informing that there was a warrant issued in October 2005, based on assault, with the warrant issued by Coryell County, and informing that the outstanding warrant for the Veteran was matched with his VA record in January 2006. An undated VA report of contact with the Coryell County government informed that the warrant was still open. On March 7, 2007, the RO sent the Veteran a notice letter informing that there was an outstanding warrant from Coryell County, Texas, and informing that he was not entitled to VA benefits while he remained a fugitive felon. The Veteran has testified that upon receiving this notice from VA he sought to rectify the situation and did pursue resolution of outstanding charges against him. A March 15, 2007, a Coryell County, Texas, Sheriff's Office document for the recall of the October 2005 warrant, based on that warrant having been dismissed, serves as evidence corroborating the Veteran's active resolution of the charges against him as well as the recall of the arrest warrant that had been outstanding. What is lacking in this case is any evidence of the Veteran having actively fled from the sheriff or other official or of his otherwise actively avoiding arrest, rather than, as he contended in testimony before the undersigned, remaining in his place of residence without cognizance of any outstanding warrant against him. There is no indication that the sheriff's office sought out the Veteran's arrest or otherwise acted upon the Coryell County, Texas, 52nd District Court arrest warrant. The Board is not charged with determining whether the Veteran engaged in criminal conduct, to precipitate the felony warrant. Rather, the Board's role here is only to determine whether he was a "fugitive felon" during the period in question under the controlling statute and regulation. 38 U.S.C.A. § 5313B(a); 38 C.F.R. § 3.665(n). In the absence of evidence to the contrary, and with supporting testimony both by the Veteran and his wife as well as his niece - a former deputy sheriff - to the effect that the Veteran had continuously resided in his place of residence, that he had not been pursued in fulfillment of the active warrant, and that he had not fled and had not otherwise actively avoided arrest, the Board finds that the Veteran was not a fugitive felon during the interval in question. 38 C.F.R. § 3.665(n). In so doing, the Board herein relies upon the apparent credibility of these assertions that he did not flee from arrest, and hence was not a fugitive felon within the meaning of 38 C.F.R. § 3.665(n). Oteze. The Board also relies on the Veteran's address remaining the same and his attendance at VA medical appointments during this same time period. Because he was not a fugitive felon, termination of benefits on that basis was not appropriate for the interval from October 31, 2005, through March 15, 2007. 38 C.F.R. § 3.665(n). ORDER The termination of VA compensation during the period from October 31, 2005, through March 15, 2007, was improper, and VA disability compensation benefits shall be restored for that period from October 31, 2005, through March 15, 2007. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs