Citation Nr: 1334334 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-27 342A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Propriety of the discontinuance of non-service-connected pension benefits from December 1, 2005 to December 5, 2011 based on fugitive felon status REPRESENTATION Appellant represented by: Pamela Walz, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from August 1970 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which terminated the Veteran's VA non-service-connected pension benefits, from December 1, 2005, due to the Veteran's purported fugitive felon status. On December 5, 2011, the RO reinstated the Veteran's non-service-connected pension benefits. The Veteran testified before a Veterans Law Judge at a September 2013 video conference hearing. A transcript of the hearing has been associated with the Virtual VA electronic claims file. Please note 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. In March 1991, the Veteran was charged with robbery, receiving stolen property, theft, and assault. 2. For failure to appear at a preliminary hearing for the abovementioned criminal charges, the Municipal Court of Philadelphia County issued a bench warrant for the Veteran in August 1991. 3. VA proposed to terminate the Veteran's VA nonservice-connected pension benefits in a letter dated May 2011; by letter dated August 2011, VA implemented the proposal from December 1, 2005, due to the Veteran's purported fugitive felon status. 4. The bench warrant was lifted and the RO reinstated the Veteran's non-service-connected pension benefits on December 5, 2011, the date the bench warranted was lifted. 5. The Veteran was not fleeing to avoid prosecution, custody or confinement after conviction for a felonious offense, or violating a condition of probation or parole imposed for commission of a felony, from December 1, 2005 to December 5, 2011; therefore, he was not a fugitive felon. CONCLUSION OF LAW Termination of the Veteran's VA nonservice-connected pension benefits from December 1, 2005 to December 5, 2011, was not proper. 38 U.S.C.A. §§ 5107, 5313B (West 2002); 38 C.F.R. § 3.665(n) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting the appeal, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Laws and Regulations A Veteran eligible for compensation benefits may not be paid such benefits for any period during which he or she is a fugitive felon. 38 U.S.C.A. § 5313B. 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). "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). In addressing how fugitive felon status affected payment of VA benefits to dependents, a VA Office of General Counsel opinion interpreted the VA fugitive felon provision as having been 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. See VAOPGCPREC 7-2002. In that opinion, it was also 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). Integral to both the statute and regulation is the concept of flight: a person must flee to avoid responsibility for the commission or attempted commission of a felony. The United States Court of Appeals for the Second Circuit has held that the SSA's version of the law did not permit SSA to conclude simply from the fact that there is an outstanding warrant for a person's arrest that he is fleeing to avoid prosecution and that there must have been some evidence that the person knows his apprehension is sought. Oteze Fowlkes v. Adamec, 432 F.3d 90, 96-97 (2d Cir. 2005). It was further noted that in Jhirad v. Ferrandina, 486 F.2d 442, 444 (2d Cir. 1973), the law had been construed to imply an intent requirement and that in United States v. Rivera-Ventura, 72 F.3d 277, 280 (2d Cir. 1995), the term fleeing from justice was a term that has generally been interpreted to mean a flight with intent to avoid or frustrate prosecution. Thus, flight with intent to avoid or frustrate prosecution, custody or confinement must be considered except in cases of probation or parole violation. In other cases, the federal district courts have found that SSA's belief that the mere presence of a warrant was sufficient to establish fugitive felon status under their similar law was in contradiction to the underlying statute and regulations. See Garnes v. Barnhardt, 352 F. Supp. 2d 1059, 1066 (N.D. Cal. 2004) and Hull v. Barnhart, 336 F. Supp. 2d 1113 (D.Or. 2004). Termination of Non-Service-Connected Pension Benefits During the September 2013 Board hearing, the Veteran testified that he was unaware of the outstanding bench warrant issued for his arrest in August 1991. The Veteran reported that at the time of his August 1991 preliminary hearing, he was instructed by his attorney not to appear due to some alleged corruption involved in the case. See September 2013 Hearing Transcript at pgs. 11-12. Moreover, the Veteran testified that he first became aware of the outstanding bench warrant upon receiving the May 2011 VA notification letter purporting to terminate his pension benefits. According to the Veteran, and confirmed by the Philadelphia County Municipal Court documents in the record, the Veteran sought to have the bench warranted lifted, and was successful in doing so on December 5, 2011. Thereafter, the RO reinstated the non-service-connected pension benefits, effective December 5, 2011. Upon review of all the evidence of record, the Board finds the Veteran's testimony to be credible and generally supported by other evidence. The Board further finds that although the Veteran was arrested and charged with several felonies under 38 C.F.R. § 3.665(n)(3), the Veteran was not a "fugitive felon" as defined under 38 C.F.R. § 3.665(n)(2). Specifically, the evidence of record demonstrates that the Veteran did not flee to avoid prosecution, custody or confinement after conviction for an offense, or violate a condition of probation or parole imposed for commission of a felony under Federal or State law. In this regard, the Veteran has credibly reported that he did not attend the August 1991 preliminary hearing due to advice from his criminal defense attorney at that time. According to the Veteran, he never heard anything else in regard to the case and believed that all pending charges had been dropped. Further, the Veteran did not attempt to flee the State or County as the Veteran reported living and working in Philadelphia for last 20 years. Also, the Veteran could not have fled to avoid probation or parole as the Veteran had not been convicted or sentenced for any crime. For these reasons, the Board finds that the Veteran did not flee to avoid prosecution, custody or confinement after conviction, or violate a condition of probation or parole as it cannot be determined from the record that he was even aware of the bench warrant until May 2011. To the extent of any reasonable doubt regarding these questions, such doubt must be resolved in the Veteran's favor. 38 C.F.R. § 3.102. Therefore, the Board finds that termination of the Veteran's VA non-service-connected pension benefits from December 1, 2005 to December 5, 2011 was not proper. ORDER The termination of the Veteran's VA non-service-connected pension benefits from December 1, 2005 to December 5, 2011, was not proper. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs