Citation Nr: 18153577 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-22 625 DATE: November 28, 2018 ORDER The reduction of the appellant’s apportionment amount, effective November 1, 2013, was proper, and reinstatement of a higher rate of apportionment of the Veteran’s VA benefits to the appellant, for the relevant period of the appeal from November 1, 2013 to January 6, 2017, is not warranted. FINDINGS OF FACT 1. The appellant was in receipt of a higher rate of apportionment ($991 per month) for the period from January 1, 2013 to November 1, 2013 due to the Veteran’s incarceration. 2. The appellant and the Veteran were divorced on January 6, 2017. 3. For the relevant period on appeal from November 1, 2013 to January 6, 2017, the Veteran was not sentenced to imprisonment for a term exceeding one year as a result of a felony as defined in 38 C.F.R. § 3.665(a) (2017). CONCLUSION OF LAW The reduction of the appellant’s apportionment amount, effective November 1, 2013, was proper, and reinstatement of a higher rate of apportionment of the Veteran’s VA benefits to the appellant, for the relevant period of the appeal from November 1, 2013 to January 6, 2017, is not warranted. 38 U.S.C. §§ 5307, 5313 (West 2014); 38 C.F.R. §§ 3.450, 3.665 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1972 to January 1977. The appellant is the Veteran’s ex-spouse, who was divorced from the Veteran on January 6, 2017. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. On the June 2015 VA Form 9, the appellant requested a videoconference Board hearing; however, in November 2015, the appellant withdrew the hearing request. 38 C.F.R. § 20.704(e) (2017). Reduction in apportionment of the Veteran’s VA benefits from November 1, 2013 The appellant seeks reinstatement of a higher rate of apportionment of the Veteran’s VA benefits. A person who is incarcerated in a Federal, State or Local penal institution in excess of 60 days for conviction of a felony will not be paid compensation in excess of that amount specified in 38 C.F.R. § 3.665 beginning on the 61st day of incarceration. 38 U.S.C. § 5313(a)(1); 38 C.F.R. § 3.665(a). In the case of a veteran with a service-connected disability rated at 20 percent or more, the veteran shall not be paid an amount that exceeds the rate under 38 U.S.C. § 1114(a) (West 2014), which is at the rate of 10 percent. 38 C.F.R. § 3.665(d). If a disability evaluation is less than 20 percent, the veteran shall receive one-half the rate of compensation payable under 38 U.S.C. § 1114(a) (West 2014). 38 C.F.R. § 3.665(d). Under certain circumstances, a veteran’s compensation may be apportioned to dependents. 38 U.S.C. § 5307; 38 C.F.R. §§ 3.450, 3.665(e). When a veteran’s compensation is reduced due to incarceration, VA will inform the veteran of the rights of the veteran’s dependents to an apportionment while the veteran is incarcerated and the conditions under which payments to the veteran may be resumed upon release from incarceration. 38 C.F.R. § 3.665(a). A dependent for whom apportionment is granted during the veteran’s incarceration shall be informed that the apportionment is subject to immediate discontinuance upon the incarcerated person’s release from prison. 38 C.F.R. § 3.665(h). In this case, the appellant was in receipt of a higher rate of apportionment ($991 per month) for the period from January 1, 2013 to November 1, 2013 due to the Veteran’s incarceration. The record also reflects that the appellant and the Veteran were divorced on January 6, 2017. Accordingly, the relevant period of the appeal is from November 1, 2013 to January 6, 2017. For the reasons set forth below, the Board finds that reinstatement of a higher rate of apportionment of the Veteran’s VA benefits to the appellant, for the relevant period of the appeal, is not warranted. Historically, prior to the Veteran’s incarceration, a March 2012 decision granted an apportionment of the Veteran’s VA benefits to the appellant in the amount of $90 per month, effective August 16, 2011, which was increased $93 per month, effective December 1, 2011 pursuant to a cost of living adjustment. In February 2013, VA granted the appellant an increased apportionment amount of $991 per month, effective January 1, 2013, based on information that the Veteran was incarcerated. VA informed the appellant that the increased apportionment amount was only granted for the period of the Veteran’s incarceration, and that the apportionment was subject to discontinuance upon the Veteran’s release from prison. In March 2013, VA received a request from the Veteran for reinstatement of his benefits because he was released from incarceration on March 14, 2013. See March 2013 VA Form 21-4138; March 2013 inmate booking/release history report. In November 2013, the RO reinstated the Veteran’s VA benefits, and reduced the appellant’s apportioned amount to the original amount of $93 per month, effective November 1, 2013, which was increased to $95.62 per month based on a cost of living adjustment, effective December 1, 2013. The appellant filed a notice of disagreement with the November 2013 decision, and requested reinstatement of the higher apportionment amount of $991 per month. In December 2013, the appellant provided evidence from a state court that the Veteran had an active warrant for his arrest for communicating threats to the appellant, and that he had failed to appear for a scheduled court date on August 23, 2013. The record reflects that the Veteran was then incarcerated from December 5, 2013 to March 6, 2014. See December 2013 prison/convict information report. The appellant asserted that she is entitled to a reinstatement of the higher apportionment amount for the period from December 5, 2013 to March 6, 2014, because the Veteran was incarcerated during this period. See March 2015 VA Form 21-4138; June 2015 VA Form 9. While the appellant asserted that the Veteran had outstanding felony warrants in November 2013 and December 2013, VA did not take any action with respect to the Veteran’s benefits due to the classification of the warrants in question. See, e.g., November 2013 VA letter to the appellant. Specifically, there was no evidence that the warrants were due to a felony as defined in 38 C.F.R. § 3.665(a). Moreover, while the appellant asserts that she is entitled to reinstatement of the higher apportionment amount during the Veteran’s incarceration from December 5, 2013 to March 6, 2014, the record does not show that the incarceration during this period was a result of a conviction of a felony. Under 38 C.F.R. § 3.665(a), a felony is any offense punishable by death or imprisonment for a term exceeding one year. In this case, it is not shown that the reason for the Veteran’s incarceration during this period (communicating threats to the appellant) is a felony under North Carolina state law. Moreover, there is no evidence or allegation that the Veteran was sentenced to imprisonment for a term exceeding one year as a result of this offense. The appellant has not otherwise provided evidence that the Veteran’s incarceration from December 5, 2013 to March 6, 2014 was due to a felony as defined in 38 C.F.R. § 3.665(a). Accordingly, the Board finds that the appellant is not entitled to a reinstatement of the higher apportionment amount of $991 per month during the period from December 5, 2013 to March 6, 2014. In July 2014, the appellant asserted that the Veteran failed to appear for a court date on July 23, 2014, because he was accused of driving with a revoked license, and that a warrant for his arrest was issued. See July 2014 VA Form 21-0820. However, the appellant has not presented any evidence showing that the Veteran received of conviction of driving with a revoked license, or that the Veteran was sentenced to imprisonment for a term exceeding one year as a result of this offense. Accordingly, the evidence weighs against a find that the Veteran was incarcerated in July 2014 due to a felony as defined in 38 C.F.R. § 3.665(a). In November 2015, the appellant asserted that the Veteran was incarcerated for more than 61 days from September 4, 2015 to November 10, 2015. See November 2015 VA Form 21-0820. However, the detention center in which the Veteran was incarcerated confirmed that the Veteran was released from incarceration on the same day. See January 2016 VA Form 27-0820e. Accordingly, the Board finds that the appellant’s assertions that the Veteran was incarcerated from September 4, 2015 to November 10, 2015 are not credible. Based on the foregoing, the Board finds that the weight of the evidence demonstrates that the Veteran was not reincarcerated due to a felony as defined in 38 C.F.R. § 3.665(a) at any point during the relevant period on appeal from November 1, 2013 to January 6, 2017. Accordingly, the reduction of the appellant’s apportionment amount, effective November 1, 2013 was proper, and a reinstatement of a higher rate of apportionment of the Veteran’s VA benefits to the appellant is not warranted at any point during the relevant period of the appeal. The appeal must, therefore, be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel