Citation Nr: 1333147 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-27 823A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether a reduction of compensation benefits due to incarceration and resulting overpayment was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had a period of honorable active duty service from June 1974 to May 1980, and a period of dishonorable active duty service from November 1981 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which found that an August 2002 reduction in service-connected compensation benefits due to incarceration, and the resulting overpayment, was properly created. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In his August 2012 VA Form 9, the Veteran indicated that he wanted to testify at a BVA hearing in Washington, D.C. In subsequent statements, he stated that he desired a videoconference hearing. A typical videoconference hearing involves the Veteran appearing at his local RO and testifying before a member of the Board via videoconference equipment. Evidence in the claims file reflects that this Veteran is currently incarcerated for life. VA's duty to assist incarcerated veterans requires it to tailor its assistance to meet the peculiar circumstances of confinement, as such individuals are entitled to the same care and consideration given to their fellow veterans. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton v. Brown, 8 Vet. App. 185 (1995). Therefore, in order to facilitate the Veteran's request, VA should inquire as to the feasibility of transporting the Veteran to the RO to conduct a videoconference hearing. If circumstances do not permit the Veteran to testify directly through these means, he should be informed of the alternatives to personal testimony that are available to him. Accordingly, the case is REMANDED for the following action: 1. Contact the correctional institution where the Veteran is currently incarcerated (Wakulla Correctional Institution, 110 Melaleuca Drive, Crawfordville, Florida 32327) and inquire whether it is willing and able to safely transport the Veteran to the RO for the purpose of testifying at a scheduled videoconference hearing. All contact with the correctional institution should be documented in the claims file. If it is able to facilitate the above hearing scenario, make the appropriate arrangements. 2. If the correctional institution where the Veteran is currently incarcerated is unwilling or unable to transport the Veteran to a hearing at the RO, the Veteran and his representative should be informed of the alternatives to offering personal testimony, including: a) Submitting a written statement to be considered by the Board in deciding his appeal; b) Having his representative submit an audio cassette for transcription or written argument in the form of a brief which will be carefully considered by the Board in its review; or c) Having his representative appear alone and personally present argument to the Board on his behalf (Requests for appearances by representative alone to personally present argument to the Board may be granted if good cause is shown. Whether good cause has been shown will be determined by the presiding member assigned to conduct the hearing. See 38 C.F.R. § 20.700(b).). Notification to the Veteran of these alternatives, as well as any response received, should be documented in the claims file. 3. After a hearing is conducted, or after the Veteran and his representative are informed of the alternatives and given an appropriate time to respond, the claims file should be returned to the Board in accordance with current appellate procedures. The appellant 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). _________________________________________________ P. M. DILORENZO 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) (2013).