Citation Nr: 1304874 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-22 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to restoration of VA disability compensation benefits since August 29, 2006. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from March 1984 to March 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal following a January 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. Jurisdiction over the Veteran's claims file currently resides with the RO in Montgomery, Alabama. In June 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing. A transcript of that hearing is of record. The Board notes that the issue developed for appeal, as noted in an April 2010 statement of the case (SOC), concerns the restoration of the Veteran's VA disability benefits since August 29, 2006. With this in mind, the Veteran was advised in the above noted January 2009 administrative decision letter that his disability benefits had been stopped (the Veteran is receiving a 10 percent rating for disc degeneration of the lumbar spine) effective August 29, 2006, due to an outstanding warrant and his fugitive felon status. Furthermore, the letter informed the Veteran that an overpayment had been created. Subsequently, the Veteran was contacted in February 2009 by VA's Debt Management Center (DMC) and informed of the amount of the overpayment ($3,244.47) and that he could request a waiver of the overpayment and/or dispute the debt. Later in February 2009, the Veteran notified the Des Moines RO by letter that he disagreed with the RO's action to withhold his VA benefits. In June 2009, the Veteran also requested a waiver of the $3,244.47 he was reported to owe. In August 2009, the Veteran was notified that his request for waiver had been denied. A review of the claims file, to include the Veteran's Virtual VA electronic file, does not reflect that the Veteran has appealed the denial of his waiver request. As noted above, in April 2010, the RO issued the Veteran an SOC with regard to restoration of the Veteran's disability benefits. A later May 2010 VA Form 9 (Appeal to Board of Veterans' Appeals), also reflects the Veteran's request that his benefits be reinstated. Thereafter, in a February 2012 VA Form 646 (Statement of Accredited Representative in Appealed Case), the issue listed for consideration on appeal was noted as "Validity of Debt (Overpayment)." Furthermore, the Veteran's representative at the June 2012 hearing noted that the only issue for appeal was that involving an overpayment, and he later described the issue as "overpayment of the debt." In reviewing the record before it, the Board does not find that the issue of validity of the debt in the amount of $3,244.47 has been developed for appellate review. In this regard, the above noted April 2010 SOC does not reflect consideration of the validity of the debt issue nor does it cite to any applicable laws or regulations. The SOC, on the other hand, does cite to the regulations regarding reductions and discontinuances (38 C.F.R. § 3.500) as well as the regulations regarding incarcerated beneficiaries and fugitive felons (38 C.F.R. § 3.665). The Board notes that there is no time limited prescribed for challenging the validity of a debt. As such, and in light of the above, the Board finds that the issue of the validity of the debt in the amount of $3,244.47 has been raised by the record. However, it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Compensation is not payable on behalf of a veteran for any period during which he or she is a fugitive felon. For purposes of this section, the term 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. See 38 C.F.R. § 3.665(n) (2012). The Veteran has testified that he was incarcerated from 2001 to 2005, and was on parole until February of 2006. In the above noted VA Form 9, the Veteran alleged that his original warrant had not been rescinded by the state of Iowa, and that he did not otherwise have any outstanding warrants against him. In October 2008, the RO contacted the Veteran by letter and informed him that VA had been advised by law enforcement authorities that the Veteran was a fugitive felon because he was the subject of an outstanding warrant. The letter informed the Veteran that the warrant could be the result of a record keeping problem so no action would be taken to adjust the Veteran's VA benefits for at least 60 days. The Veteran was advised to contact the law enforcement agency noted in the letter as soon as possible to determine what needed to be done to the clear the warrant. He also was advised to send official documentation to the RO that the warrant had been cleared. The Board notes that the file copy of the October 2008 RO letter reflects a number of notations. One notation documents that the RO attempted to call the warrant agency but the available phone number was no good. An additional notation reflected that per an apparent RO employee, the Veteran was required to provide proof that the warrant had been cleared, and the RO had no duty to assist in this regard. In August 2009, the RO again contacted the Veteran by letter and notified him that he was required to provide proof that the reported warrant was no longer outstanding. Under VA's M21-1MR, a beneficiary may establish that he or she is no longer in fugitive status by submitting official documentation such as a court order or letter from the warrant agency, or providing the name, title and address or name, title and telephone number of an official who can verify that he or she is no longer in fugitive status. VA will make reasonable efforts to contact the official to establish that the beneficiary is no longer in fugitive status, but ultimately it is the responsibility of the beneficiary to provide evidence that fugitive status has been cleared. See M21-1MR, Part X, 16.3.a. Also, if VA is unable to contact the appropriate official based on the information provided by the beneficiary, or it is unable to obtain a better address/telephone number from other sources, the Veteran is to be advised of this fact and reminded that payments cannot be resumed until VA receives proof that the beneficiary is no longer in fugitive status. See M21-1MR, Part X, 16.3.c. In the present case, the Board does not find that the RO has fulfilled its duty to assist the Veteran with regard to verifying his fugitive status. The only action taken, as noted above, has been an attempt at contacting the warrant agency by phone. While that attempt was unsuccessful, no further attempts were undertaken. At a minimum, the RO should attempt to verify the address and/or telephone number of the warrant agency in question and attempt a follow-up contact by phone or mail. Therefore, this appeal is remanded to allow the RO to initiate a further attempt at verifying the Veteran's fugitive status with the appropriate official or warrant agency in accordance with the M21-1MR. If any follow up attempt at verification of the Veteran's fugitive status is unsuccessful, the Veteran should be apprised of this fact and, again, requested to provide the relevant proof that he is no longer in fugitive status. The Board is mindful that the Veteran has been notified of the impediment to restoration of his VA benefits as well as the contact information of the warrant agency. He has taken no apparent action at rectifying his status as a fugitive felon other than to argue that the state of Iowa mistakenly did not clear the outstanding warrant. Notwithstanding this remand and the RO's duty to assist, the Veteran is also encouraged to be proactive and contact the appropriate authorities to obtain the necessary documentation clearing him as a fugitive felon. Accordingly, the case is REMANDED for the following action: 1. The RO should undertake additional action to contact the appropriate official and/or warrant agency and verifying the Veteran's fugitive felon/outstanding warrant status. See M21-1MR, Part X, 16.3.a-d. If the current telephone number and address provided the RO does not allow for such contact, the RO should attempt to obtain a better telephone number and address from other sources. Thereafter, if a follow up attempt at verification of the Veteran's fugitive status is unsuccessful, the Veteran should be apprised of this fact and requested to provide the relevant proof that he is no longer in fugitive status and/or his outstanding warrant has been cleared, and reminded that payments cannot be resumed until VA receives proof that he is no longer in fugitive status. Any action with regard to the instructions noted in this paragraph should be documented for the record. 2. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issue on appeal, as is listed on the title page of this Remand. If the benefit sought is denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. 2012). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).