Citation Nr: 1537981 Decision Date: 09/04/15 Archive Date: 09/10/15 DOCKET NO. 12-30 883A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to waiver of a $2,980 debt incurred for medical services received at a Department of Veterans Affairs (VA) Medical Center (MC) in Salem, Virginia covering the periods of July 29, 2010 to September 9, 2010, of October 4, 2010 to November 22, 2010, and of January 24, 2011 to May 2, 2011, to include the issue of whether the debt was properly created. (The issues of entitlement to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) disability compensation benefits for the period from September 28, 2011 to December 16, 2011, and of entitlement to service connection for disabilities of the left ankle and left foot, are the subject of separate decisions.) REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1982 to July 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of a determination, dated in February 2012, of the Committee on Waivers and Compromises of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's request for waiver of a $2,980 debt incurred for medical services received at the Salem VAMC covering the periods of July 29, 2010 to September 9, 2010 (for $596), of October 4, 2010 to November 22, 2010 (for $1,192), and of January 24, 2011 to May 2, 2011 (for $1,192). The debt was created because the Veteran received medical care at a VAMC while he was the subject of a fugitive felon warrant, which was issued by the State of Florida in February 2009 and not cleared until December 2011. When the Board had received this case, it noticed that the record did not contain a power of attorney in favor of the North Carolina Department of Veterans Affairs (NCDVA), which had been actively involved in his claim. The Board sent the Veteran a letter in September 2014, asking him whether he wished to represent himself or appoint an accredited Veterans Service Organization (VSO) or private attorney to represent him. In a response later that month, he elected to represent himself. Therefore, despite the fact that some copies of subsequent correspondence have been sent to NCDVA, the Veteran's last known wish was to represent himself (i.e., be a pro se claimant). The Board notes that there are additional claims on appeal, which will be addressed separately in two other decisions. These involve claims of service connection for a left ankle disability and a left foot disability, and a claim of waiver of recovery of an overpayment of VA disability compensation benefits for the period from September 28, 2011 to December 16, 2011. FINDINGS OF FACT 1. A felony arrest warrant was issued in Pinellas County, Florida, in February 2009 for the possession of morphine; the record does not show that it was void from its inception or otherwise dismissed, quashed, recalled, or cleared prior to December 16, 2011. 2. VA determined that due to the Veteran's status as a fugitive felon a $2,980 debt was incurred for medical services he received at the Salem VAMC covering the periods of July 29, 2010 to September 9, 2010; October 4, 2010 to November 22, 2010; and January 24, 2011 to May 2, 2011. 3. Prior to an August 2011 letter from the VAMC, the Veteran was unaware that a warrant had been issued for him or that he was being prosecuted for the alleged crime that gave rise to the warrant. 4. With regard to a separate, simultaneous VA debt created out of the Veteran's fugitive felon status, the Board concluded in a January 2015 decision by a Veterans Law Judge other than the undersigned that fugitive felon status was not established prior to September 2011. CONCLUSION OF LAW Fugitive felon status prior to August 2011, the date of a VAMC letter notifying the Veteran of the outstanding February 2009 warrant, is not established; therefore, the $2,980 debt incurred for medical services received at the VAMC covering the periods of July 29, 2010 to September 9, 2010, of October 4, 2010 to November 22, 2010, and of January 24, 2011 to May 2, 2011 was not properly created and is invalid. 38 U.S.C.A. § 5313B (West 2014); 38 C.F.R. § 3.665 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial Matter The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Notwithstanding the requirements of the VCAA, the provisions of Chapter 53 of Title 38 of the United States Code govern claims for waiver of recovery of a debt owed to VA. This statute contains its own specific notice and duty to assist provisions. The provisions of the VCAA, 38 U.S.C.A. §5100 et seq., are relevant to a different chapter of Title 38, and do not apply to this appeal. See Barger v. Principi, 16 Vet. App. 132 (2002) (the duties specified in the VCAA are not applicable to requests for a waiver of overpayment). In view of the Board's favorable decision herein, any further discussion of notice and duty to assist requirements as they pertain to this claim is unnecessary. Merits of the Waiver Claim The Veteran is seeking a waiver of a $2,980 debt incurred for medical services received at the Salem VAMC covering the periods of July 29, 2010 to September 9, 2010 (for $596), of October 4, 2010 to November 22, 2010 (for $1,192), and of January 24, 2011 to May 2, 2011 (for $1,192). The debt was created due to a felony arrest warrant issued by the State of Florida in February 2009 for possession of morphine. The record does not show that the warrant was void from its inception or otherwise dismissed, quashed, recalled, or cleared prior to December 16, 2011. The Veteran has argued that he was wrongly charged with the crime that led to the overpayment. Moreover, he has claimed that he was unaware that there was an arrest warrant until VA informed him of that fact at a much later period of time (VA records show that he was informed of the warrant in letters sent to him in August 2011 and September 2011). He asserts that he has lived in North Carolina since before the warrant was issued, and that he was not hiding or fleeing. He also contends that the warrant was mistakenly issued, and that he was never arrested for drug possession in Florida. In short, he essentially argues that the VAMC debt that was incurred by him during the period he was in fugitive felon status is invalid and that he should not have to pay for the medical services he received during such time. After a review of the record to include consideration of a prior Board decision in January 2015 and the Veteran's contentions, the Board finds that the $2,980 VAMC debt is not valid as fugitive felon status prior to August 2011 is not established. Of particular relevance to this case is the fact that the Board has promulgated a decision in January 2015, pertaining to a separate, simultaneous VA debt, which was created out of the Veteran's fugitive felon status arising from the same arrest warrant as in the case at hand. In that recent decision by a Veterans Law Judge other than the undersigned, the Board concluded that fugitive felon status was not established prior to September 2011, which was the date of an RO letter notifying the Veteran of the outstanding February 2009 warrant. The Board found that prior to the September 28, 2011 letter, the Veteran was unaware that the arrest warrant had been issued or that he was being prosecuted for the alleged crime that gave rise to the warrant. In the present case, the Board has discovered additional records in the file that show the Veteran was informed of the warrant in an August 2011 demand letter from the VAMC that notified him of the $2,980 debt for medical services received at Salem VAMC. The actual August 2011 letter is not of record, but it is referenced in the statement of the case issued in April 2012. In any event, the Veteran was aware of the debt because in late August 2011, he filed a request for a waiver of the debt. In his statement, he asserted that he had been informed of the debt and that he was disputing it because he believed his medical care was free. (Also of record is a September 6, 2011 letter from the Office of the State Attorney to the Veteran, referencing his letter regarding his outstanding warrant and informing him that his warrant remained active; this letter is dated prior to the September 28, 2011 RO letter informing the Veteran of the arrest warrant.) In truth, whether the Veteran was notified of the issuance of the arrest warrant in August 2011 or in September 2011 is inconsequential to the disposition of this claim, because the Board has previously determined that fugitive felon status was not established before September 2011 and because the medical services at issue here covered various periods between July 2010 and May 2011. The basic laws and reasons for the decision set forth in the Board's January 2015 determination are applicable here. As previously explained by the Board, an overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. 38 C.F.R. § 1.962. The debtor may challenge the validity or amount of the debt owed, see Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991), and may also apply for a waiver of any debt found to be valid. 38 U.S.C.A. § 5302 (West 2014); 38 C.F.R. §§ 1.911(c)(2), 1.963 (2015). The law prohibits the provision of benefits (including VA hospital and medical care under Chapter 17, Title 38 U.S.C.A.) for any period during which the veteran was a fugitive felon. 38 U.S.C.A. § 5313B (West 2014). 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. 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) (2015). The crux of the issue is whether the Veteran was properly considered a "fugitive felon" under VA law. In June 2014, the Undersecretary for Benefits of the Veterans Benefits Administration (VBA) issued new fugitive felon policy and procedures. VBA Letter 20-14-09 (June 23, 2014). VBA Letter 20-14-09 indicates that VBA previously presumed that a beneficiary was a fugitive felon if he or she was the subject of any felony arrest warrant. The letter stated that, effective immediately, VBA no longer presumes that any valid outstanding felony arrest warrant establishes a beneficiary's fugitive felon status under 38 U.S.C.A. § 5313B. In any event, the Board in January 2015 found that the Veteran was not a fugitive felon for the period prior to his receipt of a September 2011 VA letter advising him of the arrest warrant, because he did not know about it until VA notified him. The issue turned on whether one must have knowledge of a warrant in order to be considered a fugitive felon under 38 U.S.C.A. § 5313B(b)(1)(A). The Board found that knowledge of the warrant is required under this subsection of the statute, citing to various cases, see Mountford v. Shinseki, 24 Vet. App. 443, 448 (2011) and Oteze Fowlkes v. Adamec, 432 F.3d 90, 97 (Fed. Cir. 2005), as well as analyzing the construction of the statutory provision itself. Thus, the Board found the Veteran was not a fugitive felon prior to September 2011, which had the effect of invalidating the VA debt (of disability compensation) created during that period he had initially been deemed to have fugitive felon status. The main differences in this case are that the VA debt arose from VAMC medical services (and not disability compensation) and that the Veteran evidently had knowledge of the arrest warrant in August 2011 (rather than a month later in September 2011). Nevertheless, as the evidence does not establish that the Veteran met the definition of a "fugitive felon" within the meaning of applicable VA law during the periods in which he received the medical services that formed the basis of the present VAMC debt, the debt was not properly created and is therefore deemed to be invalid. ORDER The $2,980 debt incurred for medical services received at the Salem VAMC covering the periods of July 29, 2010 to September 9, 2010, of October 4, 2010 to November 22, 2010, and of January 24, 2011 to May 2, 2011, was not properly created, and as it is not a valid debt, the Veteran's appeal is granted. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs