Citation Nr: 18146463 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-44 458 DATE: October 31, 2018 ORDER The overpayment of Department of Veterans Affairs (VA) disability compensation benefits in the amount of $11,242.43 resulting from the Veteran’s incarceration in excess of 60 days for conviction of a felony was properly created and the appeal is denied. FINDINGS OF FACT 1. On March 15, 2011, the Veteran was incarcerated following conviction of a felony. 2. Information obtained by the Regional Office (RO) in June 2011 revealed that the Veteran was incarcerated and sentenced to five years imprisonment; the earliest notification by the Veteran was submitted in July 2011 indicating that he was incarcerated and providing his updated address. 3. The retroactive reduction in compensation benefits is due, at least in part, to the Veteran’s failure to timely notify VA of his incarceration, which generated an overpayment debt in the amount of $11,242.43 for the period from May 2011 to May 2012. 4. The overpayment debt is not a result of sole administrative error. CONCLUSION OF LAW The overpayment of VA compensation benefits in the amount of $11,242.43 was properly created. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1977 to June 1983. In November 2017, the Veteran testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned. A transcript of the hearing is associated with the record. The Veteran’s overpayment debt is due to incarceration in excess of 60 days for conviction of a felony from May 2011 to May 2012. 38 U.S.C. § 5313; 38 C.F.R. § 3.665 (any person serving a period of incarceration for conviction of a felony for a period in excess of 60 days shall not be paid VA compensation in excess of 10 percent for service-connected disabilities rated at 20 percent or more for the period beginning on the 61st day of such incarceration). The Veteran disagreed with a June 2012 Debt Management Center (DMC) first demand letter assessing an overpayment debt in the amount of $11,242.43 based on the retroactive reduction of his compensation benefits due to his incarceration. However, the Board finds the evidence of record supports a finding that the creation of the overpayment debt was proper. Initially, the Board notes that the Veteran and his representative indicated at his November 2017 hearing that the Veteran’s overpayment debt was also affected by retroactive adjustments to his compensation benefits due to changes in dependency status but notes that the scope of this appeal is limited to the overpayment debt due to incarceration and such dependency issues will not be further discussed at this time. The Veteran does not dispute that his disability compensation benefits were properly reduced after 60 days of incarceration. However, he maintains that the error in this case was on VA’s part as he notified VA of his incarceration. See 38 U.S.C. § 5112 (b)(10); 38 C.F.R. § 3.500 (b)(2) (finding the effective date of a reduction or discontinuance of compensation by reason of an erroneous award based solely on administrative error or error in judgment shall be the date of last payment); see also Erickson v. West, 13 Vet. App. 495, 499 (2000) (“stated another way, when an overpayment has been made by reason of an erroneous award based solely on administrative error, the reduction of that award cannot be made retroactive to form an overpayment debt owed to VA from the recipient of the erroneous award.”). Specifically, the Veteran testified that he immediately notified VA upon his confinement based on advice of other veterans and indicated that the overpayment debt was solely due to VA administrative error and delay in processing the adjustment to his compensation benefits. He further stated that he was unaware his compensation benefits were not reduced because he did not have access to his bank accounts while incarcerated. Review of the record does not reflect any correspondence received by the Veteran prior to July 2011, more than 61 days after confinement began. Although the Veteran asserts that he mailed a letter to the RO in March 2011, such is not reflected in the evidence before the Board. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (the presumption of regularity provides that, in absence of clear evidence to the contrary, it is presumed that public officers have properly discharged their official duties). Rather, the record indicates the Veteran’s last contact with the RO prior to his incarceration was in August 2010 via telephone. Subsequently, an attempt to schedule the Veteran for a VA examination revealed his phone was disconnected and May 2011 mail was returned as undeliverable. The RO’s further attempts to locate the Veteran revealed his incarceration in June 2011. The Veteran notified VA in a July 2011 statement that he was serving a five year sentence and provided a new address at a state penal institution. Based on the above, the Board finds the Veteran’s statements alone do not constitute clear evidence to rebut the presumption of regularity nor does any other evidence of record. Therefore, the Board finds the Veteran did not notify VA of his incarceration prior to July 2011, and notice of his incarceration due to conviction of a felony was provided, at earliest, in June 2011 by VA. Although the Board finds it plausible that the Veteran did not have knowledge that his compensation benefit payments were not reduced in a timely manner and resulted in an erroneous award due to his testimony that he was unable to access his bank accounts during his incarceration, sole administrative error may only but found when neither the Veteran’s actions nor his failure to act contributed to the erroneous award. 38 U.S.C. § 5112 (b)(10); 38 C.F.R. § 3.500 (b)(2). As the Veteran did not advise VA of his incarceration until more than 61 days after he was confined, the Board finds his delay contributed to the creation of the overpayment debt. As such, although the RO did not reduce the Veteran’s compensation benefits until May 2012, any delay in the adjustment was not the only cause of the overpayment debt and does not constitute sole administrative error. As the Veteran received higher compensation benefits payments to which he was not entitled due, in part, to his failure to notify VA of his incarceration, the Board concludes the overpayment was properly created. The appeal is denied. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Counsel