Citation Nr: 1315771 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-20 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Propriety of the discontinuance of the Veteran's disability compensation benefits from October 18, 2007, through February 9, 2008, based on fugitive felon status. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from August 1951 to December 1956. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Effective from September 30, 1991, the Veteran has been in receipt of a 100 percent evaluation for posttraumatic stress disorder (PTSD). 2. On October 18, 2007, a warrant for the Veteran's arrest was issued in McLennan County (Texas) for obstructing justice; at that time, the Veteran was on probation for the December 1998 offense of Driving While Intoxicated (3rd or more) which is a 3rd-degree felony in the state of Texas. 3. The October 2007 warrant was cleared upon the Veteran's arrest on February 9, 2008, and the Veteran's probation was consequently revoked. 4. The Veteran's disability compensation benefits was terminated effective from October 18, 2007, until February 9, 2008, when the outstanding warrant was cleared upon his arrest on that date. CONCLUSION OF LAW VA compensation benefits for the Veteran were prohibited as a matter of law from October 18, 2007, to February 9, 2008, by reason of an outstanding fugitive felon warrant. 38 U.S.C.A. §§ 501, 5103(a), 5103A, 5313B (West 2002); 38 C.F.R. § 3.665(n)(2)(ii) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The United States Court of Appeals for Veterans Claims (the Court) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Manning v. Principi, 16 Vet. App. 534, 542-3 (2002). In addition, the VA General Counsel has held that VA is not required under 38 U.S.C. § 5103(a) to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-04 (2004). In this case, the issue before the Board is a legal one, as there is no dispute as to the essential facts required to resolve the matter. The outcome of the appeal is governed by the interpretation and application of the law and regulations, rather than by consideration of the adequacy of the evidence or resolving conflicting evidence. Accordingly, the notice and duty to assist provisions of the VCAA are inapplicable and no further development under the VCAA is required. On December 27, 2001, Congress enacted the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (Act). Section 505(a)(1) of the Act added 38 U.S.C.A. § 5313B, which provides, in pertinent part, that a veteran who is otherwise eligible for a benefit under Chapter 11 of Title 38 may not be paid or otherwise provided such benefit for any period during which such veteran is a fugitive felon. See 38 U.S.C.A. § 5313B (West 2002). The implementing regulation, 38 C.F.R. § 3.665(n), provides: Fugitive Felons: (1) Compensation is not payable on behalf of a veteran for any period during which he or she is a fugitive felon. Compensation or dependency and indemnity compensation (DIC) is not payable on behalf of a dependent of a veteran for any period during which the veteran or the dependent is a fugitive felon. (2) For purposes of this section, the term fugitive felon means 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. (3) For purposes of paragraph (n) of this section, the term 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. (4) For purposes of paragraph (n) of this section, the term dependent means a spouse, surviving spouse, child, or dependent parent of a veteran. 38 C.F.R. § 3.665(n) (2012). While 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. In addressing how fugitive felon status affected payment of VA benefits to dependents, a VA Office of General Counsel opinion noted that the VA fugitive felon provision was modeled after Public Law No. 104-193, which barred fugitive felons from receiving Supplemental Security Insurance (SSI) 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 SSA's fugitive felon provision is essentially identical to the VA provision cited above. See 42 U.S.C.A. § 1382(e)(4)(A). Review of the claims file reflects that the RO received notice from the VA Office of the Inspector General (OIG) in June 2008 that a warrant for the Veteran had been issued by the McLennan County (Texas) Sherriff's Office on October 18, 2007, for obstructing justice. It was noted in this June 2008 letter that the warrant had been cleared upon the Veteran's arrest on February 9, 2008, and consequently, the Veteran's probation for a December 1998 offense of Driving While Intoxicated (3rd or more)- a third-degree felony was revoked. The RO wrote to the Veteran in July 2008, proposing to, 60 days from the issuance of the letter, terminate his disability compensation from October 18, 2007, to February 9, 2008. The proposed termination was based on a finding that the Veteran was a fugitive felon from the time of the warrant's issuance (October 18, 2007) until it was cleared by his arrest (February 9, 2008). The Veteran did not respond to the RO's July 2008 letter within 60 days, and in the September 2008 decision, his disability compensation benefits were discontinued from October 18, 2007, to February 9, 2008. The Veteran subsequently expressed disagreement with this determination, and the present appeal ensued. The pertinent facts of this case are not in dispute. The evidence of record establishes that the Veteran was a fugitive felon from the date of issuance of the warrant for obstructing justice (October 18, 2007) until the date when the warrant against him was cleared upon his arrest (February 9, 2008). Because this warrant effectively revoked his probation for a prior felony offense, the Veteran meets the definition of a "fugitive felon" under 38 C.F.R. § 3.665(n)(2)(ii) for this time period (October 18, 2007 to February 9, 2008). The Board acknowledges the January 2013 assertion from the Veteran's representative, that the Veteran does not meet VA's definition of a "fugitive felon" under 38 C.F.R. § 3.665(n)(2)(i) because he was not 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. However, the criteria of 38 C.F.R. § 3.665(n)(2) are disjunctive. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned); Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Accordingly, as the Veteran meets the criteria set forth in 38 C.F.R. § 3.665(n)(2)(ii) (that a fugitive felon is one who violates a condition of probation or parole imposed for commission of a felony under Federal or State law), the argument set forth by the Veteran's representative is unpersuasive. In this case, application of the law to the facts is dispositive and the appeal must be denied because under the law there is no entitlement to the benefit sought. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran is not entitled to receive payment of disability compensation benefits while he was a fugitive felon, and the applicable law as implemented by the VA Secretary precludes the relief sought. ORDER The discontinuance of the Veteran's disability compensation benefits from October 18, 2007, to February 9, 2008, was proper, and the appeal is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs