Citation Nr: 20002015 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 17-55 999A DATE: January 9, 2020 ORDER An effective date of March [REDACTED], 2013 is granted for the award of an apportionment of the Veteran's VA benefits to the appellant. FINDINGS OF FACT 1. The Veteran was incarcerated following conviction of a felony on January [REDACTED], 2013. 2. VA received the appellant’s informal claim for an apportionment of the Veteran’s VA benefits on February 12, 2013. 3. VA reduced, or should have reduced, the Veteran’s VA benefits due to his incarceration effective March [REDACTED], 2013. CONCLUSION OF LAW The criteria for an effective date of March [REDACTED], 2013, and no earlier, for the award of an apportionment of the Veteran’s VA benefits to the appellant have been met. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1990 to May 2010. His decorations include the Armed Forces Service Medal, Global War on Terrorism Service Medal, and the Navy Sea Service Deployment Ribbon (2). The appellant is the Veteran’s spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. Earlier effective date for apportionment grant The appellant seeks an effective date prior to August 1, 2013, for the grant of an apportionment of the Veteran’s VA benefits. She asserts that the effective date of March 2013 is warranted based on the date she submitted her apportionment claim to VA. As relevant to this claim, VA regulations provide that a veteran serving a period of incarceration for conviction of a felony committed after October 7, 1980 who is in a Federal, State, or local penal institution in excess of 60 days for conviction of that felony will have his or her benefits reduced effective the 61st day of incarceration. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. All or part of the compensation not paid to an incarcerated veteran may be apportioned to the veteran’s spouse, child or children and dependent parents on the basis of individual need. 38 C.F.R. § 3.665(e). Under 38 C.F.R. § 3.665(f), the effective date of an apportionment shall be from the date of reduction of payments made to the incarcerated person, subject to payments to the incarcerated person over the same period, if an informal claim is received within one year after notice to the incarcerated person as required pursuant to 38 C.F.R. § 3.665(a), and any necessary evidence is received within one year from the date of request by VA; otherwise, payments may not be made for any period prior to the date of receipt of a new informal claim. Parenthetically, 38 C.F.R. § 3.665(a) pertains to the notice requirements that must be given to the interested parties to an apportionment claim, and the conditions under which payments to the person subject to reduction will be resumed upon release from incarceration. In this case, the record reflects that the Veteran was incarcerated following conviction of a felony on January [REDACTED], 2013. A February 12, 2013, electronic mail (e-mail) message shows that the appellant requested apportionment forms so she could submit an apportionment claim because the Veteran was in jail. Because the February 12, 2013, e-mail shows that the appellant expressed an intent to file an apportionment claim, the Board finds that the February 12, 2013, e-mail constitutes an informal claim for an apportionment of the Veteran’s VA benefits. In May 2013, VA issued a notice letter to the Veteran pursuant to 38 C.F.R. § 3.665(a). A September 2013 VA notification letter shows that VA reduced the Veteran’s VA benefits due to his incarceration effective March [REDACTED], 2013 (the 61st day of incarceration). After review of all the evidence, the Board finds that an effective date of March [REDACTED], 2013, is warranted because this is the date on which the Veteran’s benefits were reduced due to his incarceration. As noted above, 38 C.F.R. § 3.665(f) provides that the effective date of an apportionment shall be from the date of reduction of payments made to the incarcerated person if an informal claim is received within one year of the notice letter pursuant to 38 C.F.R. § 3.665(a). In the present case, the appellant filed her apportionment claim in February 2013, even before the VA notice letter pursuant to 38 C.F.R. § 3.665(a) was issued to the Veteran in May 2013. Moreover, the record reflects that VA reduced the Veteran’s VA benefits effective March [REDACTED], 2013, the 61st day of incarceration following his conviction of a felony on January [REDACTED], 2013. See, e.g., September 2013 VA notification letter. As such, the Board finds that March [REDACTED], 2013, is the appropriate effective date for the apportionment grant because this is the effective date of the reduction of the Veteran’s VA benefits due to his incarceration. A September 2017 statement of the case (SOC) noted that, in this case, because due process action was completed in September 2013 and VA benefits are one month in arrears, the last month that the Veteran received his full rate of compensation was August 1, 2013. However, this is contradicted by other VA correspondence showing that the Veteran’s benefits were reduced effective March [REDACTED], 2013. See, e.g., September 2013 VA notification letter. To the extent that VA did not implement the March [REDACTED], 2013 reduction of the Veteran’s VA benefits until a later time, or has not sought to recover any resulting overpayment, the appellant should not be penalized, especially given that she filed her apportionment claim in February 2013. Based on the foregoing, the Board finds that the appropriate effective date for the grant of an apportionment of the Veteran’s VA benefits to the appellant should be March [REDACTED], 2013, the date on which the Veteran’s benefits were reduced due to his incarceration. 38 C.F.R. § 3.665(f). This is the earliest effective date allowable under the law because apportionment of the Veteran’s benefits cannot be effective prior to the date that such benefits were reduced due to his incarceration. Id. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.