Citation Nr: 18155994 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-08 824A DATE: December 6, 2018 ORDER The reduction of Department of Veterans Affairs (VA) disability compensation benefits from May 30, 2006 to July 29, 2006 was improper. The reduction of VA disability compensation benefits from July 30, 2006 to May 22, 2007 was proper. FINDINGS OF FACT 1. The Veteran was incarcerated for conviction of a felony beginning on May 30, 2006. 2. The 61st day of confinement was July 30, 2006. 3. The Veteran was released on May 22, 2007. CONCLUSIONS OF LAW 1. Reduction of the Veteran’s VA compensation benefits to 10 percent due to his incarceration was not proper from May 20, 2006 to July 29, 2006. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. 2. Reduction of the Veteran’s VA compensation benefits to 10 percent due to his incarceration was proper beginning on July 30, 2006. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from August 1980 to May 1983. The Veteran has a separate claim for apportionment. In that claim, he has filed a request for a Board hearing. The Veteran will be scheduled for a hearing in due course, and therefore, that claim will not be considered in this decision. Whether the reduction of VA disability compensation benefits from May 30, 2006 to May 22, 2007 was improper. The law provides that when a recipient of VA benefits is incarcerated in a penal institution as a result of conviction of a felony, the amount of benefits payable will be no more than the rate for a 10 percent disability rating for the duration of the incarceration. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. This reduction in benefits is to be effective on the 61st day of such confinement and is to remain in effect until the time of release. While the benefits paid to the Veteran or dependent are reduced, the rating is not affected and full payments are to resume after release. This requirement for reduction in benefits does not apply with respect to any period during which the individual is participating in a work-release program or residing in a half-way house. 38 U.S.C. § 5313(a)(2). The legislative history of this legal provision clearly shows Congress’ desire to limit the payment of disability compensation, which is intended to help support a Veteran to obtain food and shelter, when the government is being forced to pay for that Veteran’s food and shelter by virtue of that Veteran having been incarcerated for the commission of a felony. See 126 Cong. Rec. 26, 118 and 26,122 (1980); VAOPGPREC 10-2001 (2001), 66 Fed. Reg. 33309 (2001). The U.S. Court of Appeals for the Federal Circuit stated that the plain language of 38 U.S.C. § 5313(a)(1) supported the finding of the U.S. Court of Appeals for Veterans Claims (Court) that reduction of compensation “depends only upon incarceration for a period in excess of sixty days for conviction of a felony, not upon the conviction becoming final in state courts, or after complete exhaustion of post-conviction review opportunities.” Therefore, a Veteran’s benefits are properly reduced to the 10% rate on the 61st day of incarceration for a felony, regardless of whether post-conviction review remains pending. Wilson v. Gibson, 753 F.3d 1363, 1367 (Fed. Cir. 2014). The Veteran was incarcerated for conviction of a felony from May 30, 2006 to May 22, 2007. Beginning on May 23, 2007, the Veteran began serving a sentence for conviction of a misdemeanor. The Regional Office reduced the Veteran’s benefits from May 30, 2006 to May 22, 2007. However, pursuant to 38 U.S.C. § 5313 and 38 C.F.R. § 3.665, the Veteran’s benefits should not have been reduced until July 30, 2006. Therefore, the Veteran’s reduction in benefits from May 30, 2006 to July 29, 2006 was improper. Due to the Veteran’s incarceration for a felony, the reduction in benefits from July 30, 2006 to May 22, 2007 was proper. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke