Citation Nr: 1805471 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-45 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to wavier of recovery of an overpayment of disability compensation benefits in the amount of $212, 117.00. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from February 1987 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran's claims file has since been transferred to the Philadelphia RO. The issue of entitlement to service connection for an acquired psychiatric disorder-specifically, posttraumatic stress disorder secondary to military sexual trauma-has been raised by the record in a June 1997 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The Board notes that the Veteran expressed her desire to withdraw the claim currently on appeal in a written statement submitted in December 2017. However, the record shows that in November 2017, the Veteran was found to be incompetent to manage her personal affairs. Withdrawal of an appeal is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Given that the Veteran has been found to be incompetent, it is not clear that the Veteran's withdrawal was done with a full understanding of the consequences of her action. Additionally, in its January 2018 informal hearing presentation, the Veteran's representative argued that the Veteran's withdrawal was ambiguous. Therefore, the Board finds that the criteria for withdrawal have not been met and that the claim is still on appeal. 38 C.F.R. § 20.204 (b). The case was previously remanded for further development in May 2013. Regrettably, as will be discussed in further detail below, another remand is necessary before a final decision can be made. Accordingly, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a) (2) (2012). REMAND The Board finds that there was not substantial compliance with its May 2013 remand order and that it may not therefore proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, although the Board regrets the additional delay, another remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran seeks waiver of recovery of an overpayment of benefits in the amount of $212, 117.00, which was created due to a felony arrest warrant issued in 1993 by the state of Florida. The Veteran contends that she was not a fugitive felon because she did not know about the warrant until July 2008, when she immediately took action to have the warrant recalled. Background In October 2008, the VA Office of Inspector General Fugitive Felon Program identified an outstanding arrest warrant for the Veteran. According to the FFP-3 Form, the warrant was issued by the Pinellas County Sheriff's Office in September 1993 for obstructing justice. The FFP-3 form did not provide an NCIC offense code. The AOJ subsequently informed the Veteran she was considered a fugitive felon and that VA was proposing to reduce her benefits. Shortly thereafter, the Veteran responded with correspondence indicating that she had retained a lawyer in July 2008 in order to resolve the criminal matter Florida. At a January 2009 hearing at the Louisville, Kentucky RO, the Veteran testified that she did not know about the outstanding warrant until she was notified by the Social Security Administration in July 2008. She testified that upon notification, she immediately took action to resolve the issue, even asking to be extradited to Florida in order to clear the warrant. She also testified that she had passed numerous criminal background checks in multiple states over the years without issue. In June 2009, a Pinellas County judge ordered the recall of the outstanding violation of probation warrant and termination of the Veteran's probation. VA reinstated the Veteran's benefits accordingly. However, the Veteran was notified that she was still responsible for the benefits paid to her during her time as a fugitive felon from December 2001 to June 2009. As previously discussed, this matter was remanded by the Board in May 2013. The Board instructed the AOJ to confirm the existence of felony warrants, and to determine whether the AOJ was under any obligation to contact the OIG coordinator. In February 2016, the AOJ contacted the Pinellas County Clerk's office and confirmed that a warrant was issued in September 1993 for failure to appear, false bomb report, and violation of probation-all felony charges. The Clerk confirmed that the warrant was returned unexecuted in June 2009. However, the AOJ did not pursue the question of whether there was an obligation to contact the OIG coordinator. Applicable Law The law prohibits the payment of compensation benefits for any period during which the veteran was a fugitive felon. 38 U.S.C. § 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. 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). Under VA Adjudication Manual M21-1 X.16.3.d, it is appropriate for a Veterans Service Center or Pension Management Center to contact an OIG Fugitive Felon Coordinator for advice when a beneficiary admits there was a valid felony warrant but reports that she never received notice of the warrant. Such is the case here. Moreover, the record is silent for any indictments, charging documents, or other evidence that would shed light on the question of whether the Veteran was indeed a "fugitive felon." Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the OIG Fugitive Felon Coordinator for assistance in ascertaining the complete circumstances under which the felony warrant was issued against the Veteran in September 1993. Obtain any indictments, charging documents, police reports, and other material that may provide more information. Efforts to obtain these documents must be noted in the claims file. The following questions must be investigated: (a) When and where did the crime for which the warrant was issued take place? What are the circumstances of the underlying offense? (b) Was there any attempt made to notify the Veteran that a felony warrant was issued against her by local authorities in Florida? If so, the full circumstances and scope of such attempt should be determined and recorded. (c) During the time that the felony warrant was outstanding, did the Veteran take any steps that would reflect or suggest flight (or an attempt to make her whereabouts unknown) to avoid prosecution, i.e., was she moving without a forwarding address, concealing her domicile, etc. 2. The AOJ should then review the determination that the Veteran was a fugitive felon in light of the additional evidence obtained and the discussion above. If the determination remains unfavorable to the Veteran, the RO should issue an appropriate Supplemental Statement of the Case (SSOC) and give the Veteran and her representative the opportunity to respond. The SSOC must either itemize the evidence that supports a finding that the Veteran was fleeing prosecution or concealing her whereabouts, or cite the legal authority for the proposition that such evidence is irrelevant. 3. Furthermore (only if the overpayment continues to be found properly created), the Veteran should be given an opportunity to supplement the record with the information necessary to adjudicate a request for waiver of recovery of the overpayment indebtedness, and the matter should again be addressed by the RO and, if indicated, developed for appellate review. The appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).