Citation Nr: 1331352 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-04 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a waiver of the recovery of an overpayment of service connected disability benefits in the calculated amount of $199,158.70, to include whether the debt was properly created. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent WITNESSES AT HEARING ON APPEAL Appellant, G.L. ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active duty service from May 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 denial of a waiver of indebtedness by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania, Committee on Waivers and Compromises. The issue was remanded in April 2012 for further development. The Veteran had a videoconference hearing before the committee on waivers and compromises of the RO in December 2009. A transcript of the hearing is of record. FINDINGS OF FACT 1. On December 27, 2001, Congress enacted the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (Act), which, in pertinent part provides 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. 2. In January 2009, the RO advised the Veteran that he was the subject of an outstanding warrant issued by Cambridge District on March 10, 1992. 3. The Veteran was not aware of the outstanding warrant prior to January 2009. 4. The Veteran was not fleeing to avoid prosecution or custody or confinement after conviction for a felonious offense, or attempting to commit a felonious offense, and was not violating a condition of probation or parole imposed for commission of a felony. CONCLUSION OF LAW The Veteran was not a fugitive felon from December 27, 2001 to February 4, 2009, and the debt was not properly created. 38 U.S.C.A. § 5313B (West 2002); 38 C.F.R. § 3.665(n) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness. See Schaper v. Derwinski, 1 Vet. App. 430 (1991). The VA General Counsel has reinforced this obligation by holding that where the validity of the debt is challenged, that issue must be developed before the issue of entitlement to a waiver of the debt can be considered. See VAOPGCPREC 6-98 (April 24, 1998). In order for the Board to determine that the overpayment was properly created, it must be established that the Veteran was not legally entitled to the benefits in question, or, if there was no legal entitlement, then it must be shown that VA was solely responsible for the Veteran erroneously being paid benefits. 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 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. 38 U.S.C.A. § 5313B (West 2002). VA's Office of General Counsel has noted that the fugitive felon provision was modeled 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 (December 3, 2002). 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). 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 Federal or State law. 38 C.F.R. § 3.665(n)(2) (2011). 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 C.F.R. § 3.665(n)(3). On March 10, 1992, the Cambridge District Court issued a warrant for the Veteran's arrest. Information received by VA in approximately January 2009 indicated that the warrant was issued in response to an offense of "damage property." Pursuant to the Board's April 2012 remand, the RO contacted the Cambridge District Court to determine whether the warrant was for a felony charge. In February 2013, the Cambridge District Court informed the RO that the warrant was for destruction of property over $250, which is a felony. In January 2009, the RO informed the Veteran that he had been identified as a fugitive felon because he was the subject of an outstanding warrant. Upon being informed of his status as a fugitive felon, the Veteran wrote to the magistrate that very day. He informed the magistrate that he did not recall the incident or what transpired within the courts. On February 4, 2009, the warrant was cancelled. In December 2009, the Veteran testified that he did not know that he was a felon. The Veteran credibly testified in December 2009 that he was unaware of the outstanding warrant until January 2009, when he was notified by VA. He immediately contacted the magistrate and the warrant was cancelled. There is no evidence that the Veteran was awarded of the outstanding warrant; hence there is no basis to find that the Veteran was fleeing to avoid prosecution. Additionally, in its April 2012 remand, the Board noted that a February 2009 correspondence from the Veteran's attorney at the time indicated that there were "outstanding cases in West Roxbury and in the Boston Municipal Court which need to be cleared as well." A February 2013 Report of General Information reflects that the RO contacted the Boston Municipal Court and West Roxbury Court to obtain any outstanding warrants. Both court systems denied having any records of the Veteran with the date/warrant number indicated in the remand. Based on the foregoing, the Board concludes that the Veteran may not be considered to have been a fugitive felon during the time period at issue, and the payment of compensation did not create a debt subject to repayment. Consequently, the issue of entitlement of a waiver to repay is rendered moot. The Board is granting the full benefit sought on appeal. In light of the favorable disposition, the Board finds that the Veteran is not prejudiced by any failure of VA to comply with its duties to notify and assist in substantiating the claim under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). ORDER There was no valid debt and repayment of the alleged debt of $199,158.70 is waived. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs