Citation Nr: 1321029 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 08-11 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether termination of the Veteran's VA disability compensation from December 27, 2001 to June 16, 2004, due to fugitive felon status, was proper. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1967. In October 1992, VA adjudicated him incompetent. The appellant is his spouse-payee. See 38 C.F.R. § 20.301(b) (2012). The matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The RO terminated the Veteran's VA disability compensation from December 27, 2001 to June 16, 2004, finding that he had status as a fugitive felon during that time. This case was previously before the Board in March 2012, when it was remanded to afford the appellant an opportunity to appear at a Board hearing at the RO. That hearing was held in April 2013. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the appellant's claim. The electronic file contains a copy of the transcript of the April 2013 Board hearing, in addition to other evidence, which the Board has reviewed. FINDINGS OF FACT 1. In July 1987, the Veteran was charged with a felony in the State of Florida; after he was charged, he went to Puerto Rico, where he was hospitalized for treatment of schizophrenia and alcohol abuse. 2. In August 1987, a warrant was issued for the Veteran's arrest after he failed to appear for a Florida court hearing ordered in connection with the felony with which he had been charged. 3. It has not been established by a preponderance of the evidence that the Veteran moved to Puerto Rico in an effort to avoid prosecution. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, termination of the Veteran's VA disability compensation from December 27, 2001 to June 16, 2004, due to fugitive felon status, was not proper; benefits for that period should be restored. 38 U.S.C.A. §§ 5107, 5313B (West 2002); 38 C.F.R. § 3.102, 3.665 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION On December 27, 2001, Congress enacted 38 U.S.C.A. § 5313B, which provides, in part, that "[a] veteran who is otherwise eligible for a benefit [under chapters 11, 13, 15, 17, 19, 30, 31, 32, 34, 35, or 37 of Title 38] 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). For purposes of the statute, 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(b)(1) (West 2002); 38 C.F.R. § 3.665(n)(2) (2012). 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. 38 U.S.C.A. § 5313B(b)(2) (West 2002); 38 C.F.R. § 3.665(n)(3) (2012). In addressing how fugitive felon status affects payment of VA benefits to dependents, the VA General Counsel has noted that relevant provisions of 38 U.S.C.A. § 5313B were patterned after Public Law No. 104-193, which bars 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. 2, 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. SSA's fugitive felon provision is essentially identical to the VA provision referenced above. See 42 U.S.C.A. § 1382(e)(4)(A) (West 2002). Integral to the law is the concept of flight: a person must flee with the intent to avoid responsibility for the commission or attempted commission of a felony. See, e.g., Oteze Fowlkes v. Adamec, 432 F.3d 90, 96-97 (2d Cir. 2005) (noting that the SSA 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). In the present case, there is no suggestion that the Veteran was in violation of a condition of probation or parole imposed for commission of a felony under Federal or State law during the period here in question. Nor is there any suggestion that he was at that time under conviction for a felony offense, or for an attempt to commit a felony offense. The sole question presented for the Board's review is whether the Veteran fled in order to avoid prosecution, within the meaning of application legislation, so as to become a "fugitive felon." The evidence in this case shows that the Veteran has been in receipt of VA disability compensation for schizophrenia since July 1971. His disability was originally found to be 30 percent disabling, but was later increased to 70, and then 100, percent. On May 22, 1987, the Veteran was admitted to the VA Medical Center (VAMC) in Tampa, Florida, for treatment of schizophrenia. At that time, he was in receipt of a 70 percent disability rating. In the hospital summary, it was noted that he and his wife had moved to Florida from Puerto Rico six months earlier; that he had become increasingly paranoid during that time; that it was felt he would do much better in the cultural atmosphere of Puerto Rico; and that his wife was making plans for a move to Puerto Rico as soon as the Veteran was discharged. He was released from the hospital on June 2, 1987. It was noted that follow-up would be with a VA mental health clinic in Orlando, Florida and, subsequently, VA facilities in Puerto Rico. Approximately four days after his release from the Tampa VAMC, the Veteran allegedly set fire to his own automobile. A Criminal Report Affidavit, dated June 15, 1987, indicates that the Veteran entered a gas station, bought gasoline in a half-gallon plastic milk jug, and asked witnesses if there was a place he could set himself on fire. He left in his vehicle, and it was found burning a short distance away approximately four minutes later. Based on that account of events, and following a series of adjudicatory actions (as reflected in a docket sheet from the Circuit Court of Hillsborough County, Florida), including a period of custodial confinement and court-ordered psychiatric evaluation, the Veteran, on July 31, 1987, was formally charged with the felony of second degree arson. He was released on his own recognizance pending further proceedings. After the Veteran was charged, he traveled to Puerto Rico, where, on August 5, 1987, he was admitted to the VAMC in San Juan for treatment of schizophrenia and alcohol abuse. It was noted that he had originally been admitted to the VA clinic in Mayaguez, Puerto Rico, but was transferred to the emergency room at the San Juan VAMC, then to the psychiatric intensive care unit (PICU) and, finally, to the psychiatric ward. On August 7, 1987, while the Veteran was in the hospital in San Juan, the Clerk of the Circuit Court in Hillsborough County, Florida, mailed a notice of hearing to the Veteran at his Florida address. It was noted that the hearing was scheduled for the morning of August 14, 1987, and that his failure to appear would result in an arrest warrant being issued. The Veteran failed to appear for the hearing. On August 18, 1987, a warrant was issued. On September 4, 1987, the Veteran's wife contacted the Circuit Court in Hillsborough County and notified the court of the Veteran's whereabouts; specifically, that he was a patient in a VA hospital. Attached to her submission was a certification from the San Juan VAMC to the effect that the Veteran had been admitted to that facility on August 5, 1987, and remained hospitalized. According to the pertinent hospital summary, the Veteran was discharged from the VAMC later that same day. On June 2, 2004, following the enactment of 38 U.S.C.A. § 5313B, the RO notified the appellant that VA had been advised by law enforcement authorities that the Veteran had been identified as a fugitive felon because he was the subject of an outstanding warrant issued in Hillsborough County, Florida on August 18, 1987. She was advised to contact the agency issuing the warrant as soon as possible to determine what needed to be done to clear the warrant and, when that had been done, to provide the RO with official documentation establishing that the warrant had been cleared. Thereafter, the appellant submitted a Notice of Nolle Prosequi (essentially, a notice of intent not to prosecute), filed with the Circuit Court in Hillsborough County, Florida, by the Florida State Attorney on June 16, 2004. The notice indicates that the Veteran was in Puerto Rico; that the State Attorney's Office had made a decision not to extradite in 1995; that the Veteran's mental state was declining, and he was in a VA hospital; and that, as a result, the State was going to "Nolle Prosse" (not prosecute) the case. Based on the evidence received, the RO terminated the Veteran's VA disability compensation beginning December 27, 2001 (the effect date of 38 U.S.C.A. § 5313B), finding that he had status as a fugitive felon during that time, and resumed benefits effective June 17, 2004; the day after the August 1987 warrant was cleared. In her submissions on appeal, the appellant asserts that the Veteran was not a fugitive prior to June 17, 2004. She points out, among other things, that she notified the Florida court by mail of her husband's whereabouts. Following a review of the evidence in this case, and the applicable laws and regulations, the Board finds that the evidence supports restoration of the Veteran's disability compensation from December 27, 2001 to June 16, 2004. As noted above, the evidence shows that the Veteran left for Puerto Rico shortly after being released on his own recognizance on July 31, 1987. However, it appears from the record that the Veteran and his wife had previously been making arrangements for his move to Puerto Rico, for medical reasons, separate and apart from any legal proceedings. It also appears clear from the record that the Veteran was suffering from severe psychiatric impairment at the time he left Florida for Puerto Rico, inasmuch as when he arrived at the VAMC in San Juan on August 5, 1987, he was treated on an emergent, intensive, and prolonged basis. In the Board's view, that evidence calls into question his mental state, and whether he had, or was capable of forming, the requisite intent to flee. Moreover, his wife took specific action to notify the Florida court of his whereabouts; an action wholly inconsistent with an intent to avoid prosecution. Thereafter, and despite having that information, the State of Florida made no further demands on the Veteran, and he remained in Puerto Rico, where he has lived openly ever since. Under the circumstances, the Board is not persuaded that it has been established by a preponderance of the evidence that the Veteran moved to Puerto Rico in an effort to avoid prosecution. The evidence, at a minimum, gives rise to a reasonable doubt on the question. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Accordingly, his disability compensation benefits from December 27, 2001 to June 16, 2004, must be restored. The appeal is granted. ORDER VA disability compensation benefits from December 27, 2001 to June 16, 2004, are restored, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs