Citation Nr: 1752055 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-02 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to restoration of service connection disability compensation benefits for the period beginning December 19, 2003, which were suspended due to the Veteran's status as a fugitive felon. REPRESENTATION Veteran represented by: Paul D. Bradley, Agent ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran had active military service from March 1980 to April 1981. This case came before the Board of Veterans' Appeals (Board) on appeal from a January 2006 administrative decision by a Department of Veterans Affairs (VA) Regional Office. This matter was remanded in October 2012. FINDINGS OF FACT 1. The Veteran's VA disability compensation benefits were terminated effective from December 19, 2003 to April 23, 2012, due to fugitive felon status due to a December 19, 2003 outstanding warrant. 2. From December 19, 2003 to April 23, 2012, the evidence weighs against a finding that the Veteran was fleeing to avoid prosecution or custody or confinement after conviction for a felonious offense, or attempting to commit a felonious offense; moreover, he was not violating a condition of probation or parole imposed for commission of a felony. CONCLUSION OF LAW The discontinuation of the Veteran's VA compensation benefits from December 19, 2003 to April 23, 2012, based on fugitive felon status, was improper. 38 U.S.C.A. § 5313B (West 2014); 38 C.F.R. § 3.665 (n) (2016); VBA Letter 20-14-09 (June 23, 2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The issue before the Board is whether the Veteran was properly considered a "fugitive felon" under VA law. After reviewing the procedural and factual background, and upon consideration of recent changes in VA policy regarding the designation of Veterans as "fugitive felons," the Board finds that the preponderance of the evidence weighs against a determination that the Veteran was a "fugitive felon" and that, therefore, the cessation of VA compensation benefits was not valid. Prior VA policy was to presume that a beneficiary was a fugitive felon if he or she was the subject of any felony arrest warrant. See M21-1 Manual Rewrite (MR), Part X, Chapter 16, Topic 1, Block c. However, 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. The letter further states that VBA will request information only for beneficiaries who have a felony arrest warrant with a National Crime Information Center (NCIC) offense code indicating flight or a probation or parole violation. These codes are: 4901 - Escape 4902 - Flight to avoid prosecution 4999 - Flight-escape 5011 - Parole violation 5012 - Probation violation 8101 - Juvenile offender abscond while on parole 8102 - Juvenile offender abscond while on probation VBA will discontinue benefits based on fugitive felon status only if: a judge issued a felony arrest warrant with a NCIC offense code indicating flight or a probation or parole violation; VA provided the beneficiary notice regarding the reason for the warrant and an opportunity to present evidence, such as an acknowledgment of the validity of the warrant or failure to respond to the due process notification, or that he or she did not flee from justice or did not violate any condition of probation or parole; and VA determines, based upon the warrant and evidence submitted by the beneficiary (if any), that the beneficiary was fleeing from justice or violated a condition of probation or parole. Benefits will be terminated for Veterans while they are fugitive felons and dependents of Veterans while the Veteran is a fugitive felon. Although the aforementioned policy change was not in effect at the time of that a felony warrant was issued in this case, the reasoning behind that policy change is nonetheless for application to the facts of this case. With regard to the facts of this case, on December 19, 2003, a warrant from the state of Georgia was issued for the Veteran's arrest for obstructing justice. 06/23/2005 Bureau of Prisons/Fugitive Felon Information. The Veteran was incarcerated from March 29, 2004 to June 7, 2005. 02/24/2014 Prison/Convict Information. In November 2005, VA notified the Veteran that he was the subject of an outstanding arrest warrant and was considered a fugitive felon, and that it was proposed that his VA benefits would be suspended effective December 19, 2003. 11/08/2005 Notification Letter. In January 2006, VA notified the Veteran that his benefits were reduced, effective December 19, 2003 due to his status as a fugitive felon. 01/10/2006 Notification Letter. A January 2006 VA Report of Contact reflects the Veteran's inquiry as to whether he would receive VA benefits, and he reported that he had contacted the Court and that he is no longer a fugitive felon. 01/31/2006 VA 119 Report of Contact. In February 2006, VA sent correspondence to the Veteran requesting that he submit court documents showing that he was not a fugitive felon. 02/01/2006 Notification Letter. An April 2006 VA Report of Contact reflects the Veteran's report that he was incarcerated as of March 16, 2006. 04/25/2006 VA 119 Report of Contact. VA correspondence dated in June 2006 to the Veteran reflects that VA inquired about the December 19, 2003 warrant which it determined was still outstanding. 06/01/2006 Notification Letter. The Veteran was incarcerated from June 8, 2006 to February 5, 2007. 02/24/2014 Prison/Convict Information. In July 2006 correspondence, the Veteran inquired as to the basis for him not receiving compensation. 07/19/2006 Correspondence. VA correspondence dated in August 2006 to the Veteran reflects that VA inquired about the December 19, 2003 warrant which it determined was still outstanding. 08/03/2006 Notification Letter. The Veteran was incarcerated from November 13, 2008 to February 3, 2011. 02/24/2014 Prison/Convict Information. A March 2009 VA Report of Contact reflects a determination that the December 19, 2003 warrant was still outstanding. 03/25/2009 VA 119 Report of Contact. VA correspondence dated in March 2009 to the Veteran reflects that VA inquired about the December 19, 2003 warrant which it determined was still outstanding. 03/26/2009 Notification Letter. In April 2009, the Veteran notified VA that he had filed a Motion to Execute Warrant with the state of Georgia. 05/29/2009 Court Documents-General. A December 2009 Report of General Information reflects that the December 19, 2003 warrant was still valid and had not been served. 12/10/2009 VA 21-0820 Report of General Information. The Veteran testified at an RO hearing in April 2010. 04/07/2010 Hearing Testimony. The December 19, 2003 warrant was cleared on April 24, 2012. 11/25/2013 VA 21-0820 Report of General Information. VA restored VA compensation effective April 24, 2012. 02/24/2014 VA 21-8947 Compensation and Pension Award. The Board finds that there was insufficient evidence at the time that the Veteran's compensation benefits were discontinued to conclude that he was a "fugitive felon" for the purposes of ceasing benefits payments pursuant to 38 U.S.C.A. § 5313B. There is no indication that the December 19, 2003 warrant was issued in connection with any of the felonies identified in VBA Letter 20-14-09 pertaining to flight or a probation or parole violation. Moreover, the evidence reflects that the Veteran was in regular contact with VA prior to and following being informed about the outstanding warrant, and in 2009 he made attempts to have the warrant executed. As detailed above, the Veteran was incarcerated from March 29, 2004 to June 7, 2005; June 8, 2006 to February 5, 2007; and, from November 13, 2008 to February 3, 2011. Per the Veteran, he was also incarcerated as of March 16, 2006. Such incarceration was in the state of Florida, while the outstanding warrant was from the state of Georgia. While it is clear that there was an outstanding arrest warrant from December 19, 2003 to April 23, 2012, the evidence of record does not support a finding that such warrant was issued in relation to a felony involving flight or probation or parole violation, and the evidence of record does not support a finding that the Veteran was attempting to flee prosecution. Again, the Veteran was incarcerated for multiple periods during the time in question, and was in contact with VA regarding the outstanding warrant and took steps to have the warrant executed. Fugitive felon status is not established. The mere presence of an outstanding warrant in this case is insufficient to establish fugitive felon status for the period from December 19, 2003. The instant decision only addresses the sole appellate issue of fugitive felon status due to the December 19, 2003 warrant, and does not address suspension or forfeiture of compensation benefits due to other outstanding warrants or due to his periods of incarceration. ORDER Entitlement to restoration of service connection disability compensation benefits for the period beginning December 19, 2003, which were suspended due to the Veteran's status as a fugitive felon, is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs