Citation Nr: 19186169 Decision Date: 11/14/19 Archive Date: 11/14/19 DOCKET NO. 17-58 060 DATE: November 14, 2019 REMANDED Whether the termination of VA compensation from May 1, 2004, to December 15, 2009, based on fugitive felon status, was proper.   REASONS FOR REMAND The Veteran served on active duty from November 1989 to September 1992. The case is on appeal from a May 2010 decision. Whether the termination of VA compensation from May 1, 2004, to December 15, 2009, based on fugitive felon status, was proper. The Board finds that a remand is warranted to obtain the Veteran’s service personnel records (SPRs), further Florida state court records, and an advisory opinion from the VA Regional Counsel for Florida. The basic facts of this case are not in dispute. A warrant was issued in 1992 for the Veteran’s arrest based on a violation of probation. That warrant appeared to remain in effect until the issuing court in a county in Florida issued several new orders in 2009, including an order dismissing and “setting aside” the warrant and terminating the probation. The critical question at this point is concerns the effect of the 2009 Florida court orders. It is not clear if they vacated the warrant as invalid to begin with retroactively, or alternatively, whether they terminated the warrant only going forward. This finding determines the outcome of the present appeal. Records To get to this question, the Board first finds that the SPRs and court’s records are pertinent. The Veteran wrote in his November 2017 VA Form 9 that he had made a mistake during his enlistment, which caused him to get into trouble with civilian authorities. He spent 5 days in jail. He attended all court hearings. His parents paid his bail to get him out, and he paid all subsequent fines afterwards. He served his probation. His parents received the bail money back. He subsequently had background checks for his jobs, but they did not discover an outstanding warrant. When he learned of this one through VA, he contacted the county and was told that those records were in storage and would require a special request from a judge to retrieve. He contacted the judge in the court, who wrote him that he was cleared. He otherwise had no means to show that he was not a fugitive felon. The Board finds that this statement shows that his SPRs may have relevant information. As such, they should be obtained. The Florida county’s court’s records should also be obtained as they appear relevant to determining the status of his probation and the reasons for issuing the warrant. He wrote that a “special request from a judge” would be required to obtain them. To the extent necessary, the RO should ensure that the undersigned’s instant request be forwarded to the court to facilitate the records request. Regional Counsel Advisory Opinion Once all this information has been obtained, a request should be made to the VA Regional Counsel having jurisdiction over the geographical area where this court sits, such as at the St. Petersburg RO. The Regional Counsel should be asked to provide an advisory opinion on whether the court’s 2009 order, which “dismissed and set aside” the warrant, had the effect of annulling or rescinding the arrest warrant from the date of issuance such that the warrant is considered to not have been valid or issued. The Board is mindful that the RO contacted a Special Agent with VA’s Office of Inspector General for guidance. According ot an April 2010 RO report of contact, this individual “reviewed the evidence and believes the fugitive felon match is valid and an adjustment IS warranted.” (All CAPS in original.) The Board does not find that this memorandum is sufficient to resolve the question. At this point, it is a complex legal question concerning Florida state law. It is not clear to the Board that the Special Agent was a lawyer or otherwise qualified legal subject matter expert beyond confirming that the Veteran was the person at issue in the warrant. In fact, the memorandum states that the Special Agent “believes” the fugitive felon match was valid, but this is an indecisive and conjectural opinion. Nor is it supported by any rationale, including citation to legal authority. Hence, the Board finds that referral to the VA Regional Counsel is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete SPRs. (Continued on the next page)   2. Obtain all relevant records from the Circuit Court of Volusia County, Florida, pertaining to the Veteran’s 1992 court proceedings, including all records regarding his probation, which ultimately led to the issuance of the warrant for his arrest, plus all records relating to his 2009 request to have the warrant dismissed. Document all requests for information as well as all responses in the claims file. 3. Next, send this information together with request for an advisory opinion to the appropriate VA Regional Counsel having jurisdiction over the geographical area where the Circuit Court of Volusia County, Florida sits, such as at the St. Petersburg RO. The Regional Counsel should provide an advisory opinion regarding whether the Circuit Court’s 2009 order, which “dismissed and set aside” the warrant, had the effect of annulling or rescinding the arrest warrant from the date of issuance such that the warrant is considered to not have been issued or invalid. Or whether it solely had the effect of removing the warrant going forward. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.