Citation Nr: 18146568 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 13-34 266A DATE: October 31, 2018 REMANDED ISSUE The issue of whether an overpayment of compensation benefits in the calculated amount of $3,752.60, was properly created, to include the issue of whether the reduction of benefits on May 4, 2012 due to incarceration was correct, is remanded. The Veteran served on active duty in the United States Navy from May 1992 to September 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 determination by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at hearings held in April 2016 and June 2018. This case was previously before the Board in October 2015, January 2017 and November 2017 when it was remanded for additional development. The Board notes that additional issues currently before the Board will be addressed in a separate decision. 1. The issue concerning the propriety of an overpayment debt, to include whether reduction of benefits was proper, is remanded. The law prohibits the payment of compensation benefits for any period during which a veteran was a fugitive felon. 38 U.S.C. § 5313B; 38 C.F.R. § 3.655(n). 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 prohibition or parole imposed for commission of a felony under Federal or State law. 38 C.F.R. § 3.666(e)(2). The term “felony” includes a high misdemeanor under the laws of a state which characterizes as high misdemeanor offenses that would be felony offenses under Federal law. 38 C.F.R. § 3.666(e)(3). The evidence shows that the Veteran was convicted in October 2009 for “DUI 2nd and subsequent” and cruelty to animals, and incarcerated in November 2009. See November 2010 Oklahoma Department of Corrections report. The Veteran was released in July 2010 to supervised probation in Pontotoc County until November 2013. See August 2010 Oklahoma Department of Corrections, Certificate of Release. In a December 2012 VA Form 21-0820e (Report of Incarceration) from Wewoka County jail, it was noted the Veteran was incarcerated on March 4, 2012, and while he had not yet been convicted of any new charges, it was noted he had been re-incarcerated for violating parole. In a January 11, 2013 District Court of Seminole County, Oklahoma Sentencing Order, the Veteran entered a guilty plea. It was noted he had previously been convicted of one prior felony crime. The term of imprisonment was seven years, concurrently with the Pontotoc sentencing. The Veteran’s contention is that his probation was never revoked, and that his incarceration in March 2012 did not constitute a violation of his probation, and therefore during his incarceration in March 2012 he should not be characterized as a fugitive felon. Furthermore, his reduction in payment due to incarceration should not have taken place until the 61st day after his January 11, 2013 guilty plea. The pertinent issue in this case is whether the Veteran’s incarceration on March 4, 2012 was a violation of his probation from his incarceration in November 2009. The Board remanded this matter in January 2017 for additional development. In a May 2017 VA Form 27-0820 (Report of General Information), it was noted that a conversation with the Seminole County Court Clerk’s office confirmed violation of probation for a previous felony in Pontotoc County at time of incarceration. In November 2017, the Board remanded the matter for additional development, as it remains unclear whether the arrest in March 2012 in Wewoka County constituted a violation of his probation. Despite the May 2017 communication with the Seminole County Court Clerk’s office, the Veteran has also submitted statements from C.H., identified as his attorney in the 2009 Pontotoc County case, and it was stated that the Veteran never violated his probation. Indeed, it is unclear what were the terms of the Veteran’s probation, and there is no clear evidence of revocation of the Veteran’s probation due to his March 2012 incarceration. This matter was returned to the Board before such development could be completed. Thus, the matter must again be remanded for the ordered development to be completed. The matter is REMANDED for the following action: 1. The RO should contact the appropriate state authority, to specifically include the Pontotoc County Clerk, to secure the terms of the Veteran’s probation from his incarceration in 2009, and whether his incarceration in March 2012 constituted a violation of his probation which was to expire in November 2013. If the Veteran’s incarceration in March 2012 constituted a violation of his probation in Pontotoc County, any evidence supporting such finding should be secured, including any evidence of revocation of his probation. The RO should document the attempts to obtain such information. Any negative responses should be associated with the claims file. 2. Then readjudicate the issue on appeal, to include whether the provisions of 38 U.S.C. § 5313B apply. If the benefits sought on appeal remain denied, issue the Veteran and his attorney a Supplemental Statement of the Case, and afford them the opportunity to respond. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel