Citation Nr: 1807095 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-21 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether the reduction of Department of Veterans Affairs (VA) disability compensation benefits for any period after October 1, 1980, was proper, under the provisions of 38 U.S.C.A. § 5313 (West 2014); and 38 C.F.R. § 3.655 (2017). 2. Whether an amount in excess of $13,748.99 for retroactive compensation is due to the Veteran. ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran had active service from October 1973 to November 1973. In April 1995, the North Little Rock, Arkansas, Regional Office (RO) granted service connection for a pulmonary disability and assigned a 30 percent rating, effective January 17, 1991. The Veteran subsequently filed a claim for an earlier effective date, alleging clear and unmistakable error in a September 29, 1979 rating decision, and perfected an appeal to the Board of Veterans Appeals (Board). The Board's September 2006 decision was appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2009, the Court granted a Joint Motion to Terminate the Appeal as the parties reached a stipulated agreement, whereby the 30 percent rating would be applied effective August 14, 1979. The Veteran agreed that his pending appeal would be terminated as to all issues addressed in the September 2006 Board decision. He was notified in October 2009 by the RO regarding implementation of the retroactive award. The RO further notified the Veteran that his VA compensation would be reduced to 10 percent during his period of incarceration from August 14, 1979 to January 17, 1991. Finally, the RO notified the Veteran that with respect to those periods between August 14, 1979 and January 17, 1991 during which he was incarcerated, his VA compensation would be reduced on the 61st day after incarceration for a felony. The Veteran was re-incarcerated in January 2008, and in submitting notification advising the Board of same, he indicated he understood that his compensation would be reduced according to 38 C.F.R. § 3.655 on the 61st day after confinement began. In May 2008, the Veteran filed correspondence claiming the reduction of his benefits from 30 percent to 10 percent was unconstitutional as 38 C.F.R. § 3.655 did not reduce benefits for Veterans convicted of and incarcerated for misdemeanors. In October 2008, the RO notified the Veteran by letter that the reduction in VA compensation benefits had been effectuated. The Veteran filed a December 2008 notice of disagreement. A statement of the case was issued in July 2009, and in September 2009, the Veteran filed a substantive appeal again asserting constitutional claims. In a January 2010 statement in support of his claim, the Veteran also averred that he believed he was owed $13,720.00 minus a previous overpayment of $1,134.00, amounting to a final sum of $12,586.00. In May 2011, the Veteran filed an additional notice of disagreement claiming that the reduction in benefits from August 14, 1979 to January 17, 1991, was a violation of the September 2009 stipulated agreement. A June 2013 statement of the case denied the claim regarding the reduction in benefits due to incarceration after October 7, 1980 and the claim that the Veteran was due unpaid benefits in excess of $13,748.00 for retroactive compensation. A June 2013 rating decision determined that the reduction from 30 percent to 10 percent due to incarceration prior to October 7, 1980, was not valid and therefore granted a 30 percent rating from August 14, 1979 to October 7, 1980. A subsequent letter from the RO notified the Veteran of the new benefits paid as directed by the rating decision. In July 2013, the Veteran filed a substantive appeal and asserted that the reduction of VA compensation benefits was unconstitutional and that he should have received a 60 day notice letter regarding the reduction of the award granted in the September 2009 stipulated agreement. An August 2015 Board decision found that the reduction of payment of VA disability compensation benefits for his period of incarceration on and after October 1, 1980 was proper, and denied the claim of entitlement to payment of an amount in excess of $13,748.00 for retroactive compensation. The Veteran appealed the Board's decision to the Court. In June 2017, the Court set aside the Board's decision and remanded the matter for further adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). In its June 2017 decision, the Court held that the Board's previous failure to consider adequately the Veteran's contentions with regard to those periods during which he was housed in a halfway house or work release center was error. Per 38 C.F.R. §3.655(b), the term "release from incarceration" includes participation in a work release or halfway house program, parole, or completion of a sentence. On remand, the RO must develop the record to determine with as much precision as possible the dates on or after October 7, 1980 during which the Veteran participated in a work release program, resided in a halfway house, or was released from incarceration, to include those periods during which he was released on parole. Accordingly, the case is REMANDED for the following action: 1. Contact the entities where the Veteran was incarcerated, be that the Federal Bureau of Prisons, or a state bureau of prisons, as necessary, to determine on which dates on or after October 1, 1980 the Veteran was incarcerated in a state or federal prison; on which dates on or after October 1, 1980 the Veteran was a participant in a work release program or resided in a "halfway house"; and on which dates on or after October 1, 1980 the Veteran was released from incarceration, to include periods during which the Veteran was released on parole. 2. After the RO completes this development, as well as any other development it deems appropriate, it should readjudicate the Veteran's claims on the basis of all the evidence of record. If appropriate, the Veteran should be furnished with a SSOC. Thereafter, return the case to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).