Citation Nr: 18151279
Decision Date: 11/16/18	Archive Date: 11/16/18

DOCKET NO. 17-39 831A
DATE:	November 16, 2018
ORDER
Entitlement to nonservice-connected (NSC) pension is denied.
FINDING OF FACT
The Veteran was incarcerated for a period in excess of 61 days, beginning in October 2016.
CONCLUSION OF LAW
The criteria for entitlement to nonservice-connected (NSC) pension have not been met. 38 U.S.C. § 1505 (a); 38 C.F.R. § 3.666.
REASONS AND BASES FOR FINDING AND CONCLUSION
Entitlement to nonservice-connected (NSC) pension
VA will award nonservice-connected disability pension benefits to a wartime veteran who has the requisite service and who is permanently and totally disabled. Basic entitlement exists if a veteran: (1) served in the active military, naval or air service for ninety days or more during a period of war; (2) is permanently and totally disabled from non-service-connected disability not due to his or her own willful misconduct, or aged 65 or over; and (3) meets the net worth requirements under 38 C.F.R. §§ 3.274, 3.275, and has an annual income that does not exceed the applicable maximum annual pension rate (MAPR). 38 U.S.C. §§ 1502, 1521, 1522; 38 C.F.R. §§ 3.3, 3.23. 
Pursuant to 38 U.S.C. § 1505, pension benefits administered by the Secretary shall not be paid to or for an individual who has been imprisoned in a Federal, State, or local penal institution because of conviction of a felony or misdemeanor for any part of the period beginning 61 days after such individual’s imprisonment begins and ending when such individual’s imprisonment ends. 38 U.S.C. § 1505 (a); 38 C.F.R. § 3.666.
The Veteran was incarcerated for a period in excess of 61 days, beginning in October 2016. Information provided by the Florida Department of Corrections in July 2017 shows that the Veteran has been imprisoned since October 2016 in a State penal institution as a result of conviction of a felony with a release date in June 2019. The Veteran has submitted multiple statements indicating that he is currently incarcerated. 
(Continued on the next page)
 
Total and permanent disability has not been established in this case, and given the Veteran’s incarceration, the Board finds that the claim for NSC pension must be denied prior to the Veteran’s parole date. VA’s laws and regulations are clear in barring payment of nonservice-connected pension benefits sixty-one days after a conviction and incarceration, and the record indicates that the Veteran has been incarcerated for the entire appeal period. See 38 U.S.C. § 1515 (a); 38 C.F.R. § 3.666. The claim is therefore denied as a matter of law.
 
K. PARAKKAL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Christine C. Kung, Counsel