Citation Nr: 18142429 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-13 701 DATE: October 15, 2018 ORDER Debt to the government in the amount of $45,274.34 is valid as the Veteran was a fugitive felon pursuant to 38 U.S.C. § 5313B during the period from November 13, 2003 to February 15, 2008. REMANDED The appeal for a waiver of recovery of the overpayment of service-connected compensation benefits in the amount of $45,274.34 is remanded.   FINDINGS OF FACT 1. The Veteran is charged with an overpayment of compensation benefits in the amount of $45,274.34 due to fugitive felon status from November 13, 2003 to February 15, 2008. 2. The Veteran, who was on probation after pleading guilty to a felony, was issued a surrender notice for violation of the terms of his probation and a valid warrant was in place from November 13, 2003 to February 15, 2008. CONCLUSION OF LAW The discontinuance of the Veteran’s VA compensation benefits from November 13, 2003 to February 15, 2008, based on fugitive felon status, was proper. 38 U.S.C. § 5313B (2012); 38 C.F.R. § 3.666(e) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In October 2007, the Department of Veterans Affairs (VA) received notification that the Veteran had an outstanding warrant for his arrest. In December 2007, VA notified the Veteran that his pension benefits would be terminated retroactively, effective November 13, 2003, due to his status as a fugitive felon pursuant to 38 U.S.C. § 5313B. In August 2008, the Veteran was notified that his pension benefits had been terminated. In December 2008, VA notified the Veteran that his pension benefits had been reinstated effective February 15, 2008, finding that the warrant had been cleared effective that date. In August 2008, the Debt Management Center issued a first demand letter to the Veteran, stating that the overpayment of pension benefits for the period beginning November 13, 2003 had caused a debt in favor of the government in the amount of $49,464.20. See August 2008 Demand Letter. This amount was later corrected to $45,274.34 in light of the Veteran’s pension benefits being reinstated effective February 13, 2008. See August 2009 Notice Letter. In response, the Veteran submitted a request for waiver of overpayment in February 2009. The waiver request was denied in an August 2009 decision from the Committee on Waivers and Compromises. In December 2016, the Board found that the Veteran had timely submitted a notice of disagreement with the Regional Office’s August 2008 decision terminating the Veteran’s pension benefits effective November 13, 2003. The Board explained that the August 2009 decision denying waiver of overpayment is void ab initio because the decision was premature as the validity of the debt had not been established. The Board remanded the Veteran’s appeal to the Agency of Original Jurisdiction (AOJ) to issue a supplemental statement of the case on the issue of whether termination of pension benefits was proper, to include status as a fugitive felon, and to adjudicate the Veteran’s challenge to the validity of the debt. If the debt was found to be valid, the Board also ordered that the AOJ adjudicate the issue of entitlement to waiver of overpayment. 1. Whether debt to the government in the amount of $45,274.34 is valid, to include termination of the Veteran’s status as a “fugitive felon” pursuant to 38 U.S.C. § 5313B during the period from November 13, 2003 to February 15, 2008. A veteran who is otherwise eligible for a benefit may not be paid or otherwise provided such benefit for any period during which the veteran is a fugitive felon. 38 U.S.C. § 5313B(a) (2012). 38 C.F.R. § 3.665(n)(1) (2017). The term “fugitive felon” means a person who is a fugitive by reason of: (i) [f]leeing 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) [v]iolating 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) (2017). The term “felony” includes a high misdemeanor under the laws of a state that characterizes as high misdemeanors offenses that would be felony offenses under Federal law. 38 C.F.R. § 3.665(n)(3) (2017). When a warrant is dismissed, recalled, or quashed, there was still a valid warrant up until the date the warrant was cleared and VA benefits are subject to adjustment from the warrant date until the date it is recalled, dismissed, or quashed, unless there was a specific determination that the warrant was void from its inception because of mistaken identity or a defect in the warrant, or the court order specifically states that the recall is effective from a specific date that is on or before the date of the warrant, or uses the terminology nunc pro tunc, which refers to changing back to an earlier date. The record reflects that in April 2001 the Veteran pleaded guilty to a felony drug charge in Massachusetts and was sentenced to two years probation. In October 2002, his probation was extended to April 21, 2004. In October 2003, a notice of probation violation and hearing was mailed to the Veteran by his probation officer. The notice alleges that the Veteran failed to attend or successfully complete a required program (described as leaving First Academy against medical advice on October 19), failed to make a required payment, and failure to report as required by probation, including for a drug test, since October 3. In Massachusetts, when a probation violation is alleged, the probation officer “surrenders” the defendant to the court, subjecting the defendant to possible revocation of his probation. At the revocation hearing, the judge must determine, as a factual matter, whether the defendant has violated the conditions of his probation. Commonwealth v. Durling, 407 Mass. 108, 111 (1990). The Veteran’s docket sheet indicates that on the date the Veteran was scheduled to appear on the surrender notice, the judge issued instructions to issue a warrant for the Veteran. That warrant was issued November 13, 2003, and there are no other notes in the Veteran’s docket sheet until February 15, 2008. On that date, the probation officer who issued the surrender notice withdrew the notice, the warrant was recalled, and the Veteran’s probation was terminated and he was discharged. At his 2016 Board hearing the Veteran testified that he was unaware of the warrant until the VA notified him that his benefits would be terminated due to his being a fugitive felon. He stated that after he received notice from the VA he immediately went to the courthouse to resolve the warrant. Regarding 38 U.S.C. § 5313B, the Court of Appeals for Veterans Claims (Court) held in Mountford v. Shinseki that “the plain language is unambiguous: The violation of a condition of probation makes one a fugitive felon” and whether one had actual knowledge that a warrant had been issued is irrelevant. See Mountford, 24 Vet. App. 443, 447 (2011). Therefore, the Veteran’s knowledge of the warrant is not dispositive as to whether he is a fugitive felon for VA purposes. The Veteran acknowledges the Court’s holding in Mountford, but notes that unlike the appellant in that case, who was found guilty by the state court of a probation violation, he was never found by the court to have violated his probation. Thus, the Veteran contends that he was, in fact, not a fugitive felon. The Veteran submitted a June 2018 letter from a supervising attorney at the Massachusetts public defender agency, who stated that her interpretation of the docket sheet was that “…a probation surrender notice was filed on October 28, 2003, and withdrawn on February 15, 2008, as if it were never filed. [The Veteran’s] probation was terminated on 2/15/08. Since the surrender notice was withdrawn, there was no finding of a violation of probation.” The Board acknowledges that the Veteran was not found by the state court to have violated the terms of his probation. However, that is not dispositive as to whether the Veteran is a fugitive felon. Here, the Veteran’s probation officer alleged multiple probation violations. The Veteran himself has not contended that he did not, in fact, commit those probation violations. Rather, the Veteran has argued only that the court did not adjudicate the alleged probation violation. Although the record reflects that the Veteran’s probation officer withdrew the surrender notice, there is nothing in the record to suggest that the surrender notice (and related warrant) was withdrawn because of mistaken identity or other defect. There is further no indication in the record that the surrender notice was withdrawn because the probation officer believed that the Veteran in fact had not violated probation. The record further indicates that the warrant was recalled effective February 15, 2008 and not recalled effective any earlier date. Thus, the Veteran had a valid warrant from November 13, 2003 to February 15, 2008 for an alleged probation violation. The Board finds that a preponderance of the evidence before it supports that the Veteran violated his probation. As such, he was a fugitive felon during that time. Therefore, the debt of $45,274.34 is valid because the Veteran met the definition of a fugitive felon from November 13, 2003 to February 15, 2008. See 38 U.S.C. § 5313B; 38 C.F.R. § 3.665(n). REASONS FOR REMAND 1. The appeal for a waiver of recovery of the overpayment of service-connected compensation benefits in the amount of $45,274.34 is remanded. In December 2016, the Board found that the Veteran had timely submitted a notice of disagreement with the Regional Office’s August 2008 decision terminating the Veteran’s pension benefits effective November 13, 2003. As the Board explained in its December 2016 decision, the August 2009 Committee on Waivers and Compromises decision denying waiver of overpayment is void ab initio because the decision was premature as the validity of the debt had not been established at that time. Although the Board ordered in its December 2016 decision that the AOJ adjudicate the issue of entitlement to waiver of overpayment if it found the debt to be valid, the claims file does not indicate that action was taken. As such, the Board has found that the debt was validly created, that a timely request for overpayment was made but that there has been no AOJ determination regarding the waiver. The matter is REMANDED for the following action: Adjudicate the issue of entitlement to waiver of overpayment of $45,274.34. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen