Citation Nr: 20007646 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-61 057 DATE: January 29, 2020 ORDER Entitlement to an earlier effective date of May 29, 2014, for the reinstatement of VA disability compensation benefits that were terminated effective April 8, 2011 due to the Veteran's status as a fugitive felon, is granted. FINDINGS OF FACT 1. On April 8, 2011, a felony warrant for the Veteran was issued by the United States Secret Service; in September 2011 VA sent the Veteran a letter proposing to stop his compensation benefits due to his “fugitive felon” status; within weeks (in October 2011) he was taken into federal custody and his warrant was cleared. 2. The Veteran never received VA’s December 2011 letter, which terminated his compensation benefits due to “fugitive felon” status, effective April 8, 2011, and advised him of the evidence needed for the benefits to be resumed. 3. On May 29, 2014, the VA received the Veteran’s application to have his compensation benefits restored, which also included evidence of his May 21, 2014 release from federal custody; t VA did not thereafter provide him notice of the evidence necessary to complete the claim. 4. On June 16, 2016, the VA reviewed his application, obtained the necessary evidence (official documentation that the warrant in question was cleared), and assigned June 16, 2016, rather than the date of receipt of the claim, as the effective date of reinstatement of the Veteran’s benefits. CONCLUSION OF LAW An effective date of May 29, 2014, for the reinstatement of VA disability compensation benefits that were terminated effective April 8, 2011 due to the Veteran’s status as a fugitive felon, is warranted. U.S.C. §§ 501, 5110(a); 38 C.F.R. §§ 3.109, 3.400(r). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from November 1985 to November 2005. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 Department of Veterans Affairs (VA) Regional Office (RO) administrative determination. In November 2019, a a videoconference hearing was held before the undersigned. Entitlement to an earlier effective date of May 29, 2014, for the reinstatement of VA disability compensation benefits that were terminated effective April 8, 2011 due to the Veteran’s status as a fugitive felon A Veteran who is otherwise eligible for service-connected compensation may not be paid or otherwise provided such benefit for any period during which such Veteran is a fugitive felon. 38 U.S.C. § 5313B; 38 C.F.R. § 3.665(n). The term “fugitive felon” includes a person who is a fugitive by reason of (i) fleeing to avoid prosecution, or custody or confinement after conviction for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or (ii) violating a condition of probation or parole imposed for commission of a felony under Federal or State law. 38 C.F.R. § 3.665(n). Additionally, the term felony includes a high misdemeanor under the laws of a State which characterizes as high misdemeanors offenses that would be felony offenses under Federal law. 38 C.F.R. § 3.665(n). The Veteran was receiving VA compensation when VA learned of the existence of a felony warrant issued for him by the United States Secret Service on April 8, 2011. In a September 2011 letter, the RO proposed to stop the Veteran’s benefits due to evidence that he was a “fugitive felon.” A December 2011 RO letter notified the Veteran that his benefits were stopped retroactively, as earlier proposed, effective April 8, 2011. On May 29, 2014, the RO received the Veteran’s request for reinstatement of his compensation benefits. He informed VA that he was released from federal custody and enclosed documentation from the Federal Bureau of Prisons to show his release date was May 21, 2014. In a statement received in July 2015, he again requested reinstatement of his compensation benefits, and asked that his claim be expedited in light of his then financial hardship (he submitted a past-due utilities bill, which VA informed him, in a November 2015 letter, did not qualify him for expedited processing). In May 2016, the Veteran contacted his congresswoman requesting assistance in getting his VA benefits reinstated. On June 16, 2016, VA learned through a Bureau of Prisons website that the Veteran had been released from prison on May 21, 2014. VA then contacted the U.S. Secret Service and was informed that the Veteran’s felony warrant was cleared on October 12, 2011 (documentation from a United States district court was received relative to judgment in the Veteran’s criminal case). A July 2016 RO letter notified the Veteran that his benefits were reinstated effective June 16, 2016, based on notice of the outstanding felony warrant, the December 2011 VA letter notifying him of the termination of benefits based on the warrant, the Veteran’s statement received on May 29, 2014, and a VA telephone contact on June 16, 2016 that verified the clearance of the warrant. VA’s rationale for assigning June 16, 2016 as the effective date of the reinstatement of compensation benefits was that it was the date on which the U.S. Secret Service office provided information that the outstanding warrant at issue case was cleared by the Veteran’s arrest on October 12, 2011. VA found that as it did not receive evidence to show the warrant was cleared within one year following October 12, 2011, the effective date of the resumption of the Veteran’s benefits was the date VA received the evidence showing the warrant in question was cleared. The Veteran contends in statements and November 2019 hearing testimony that the effective date should be the date he applied to have his benefits reinstated, namely, in May 2014. (He also claimed the effective date should be the date of his release from federal custody, several days earlier than his application date.) He argued that he never received VA’s December 2011 letter (sent to his residence) terminating his benefits because he was in prison by that time and therefore was not informed of the requirement that he had to furnish proof that his warrant was cleared. He questioned why the VA had not verified that the warrant was cleared before sending the December 2011 letter. He indicated that he furnished the VA proof of his release from federal custody when he applied for reinstatement of his benefits in May 2014, which he felt should in itself have been proof that his warrant had been cleared, because he would not have been released from federal custody if there had been an outstanding warrant (whether local, state, or federal). He stated that when he applied for reinstatement of his benefits in May 2014, he was not informed that VA still required proof that his warrant had been cleared. After reviewing the evidence, the Board finds that an earlier effective date of May 29, 2014 is warranted for the reinstatement of the Veteran’s compensation benefits, and that May 29, 2014 is the proper effective date for resumption of such benefits. Generally, and except as otherwise provided, the effective date of award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A reopened claim is any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence. 38 C.F.R. § 3.160(e). If a claimant’s application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within a year following the date of such notification, compensation may not be paid by reason of that application. Such provisions apply to applications for reopening or resumption of payments. If substantiating evidence is required with respect to the veracity of a witness or the authenticity of documentary evidence timely filed, there will be allowed for the submission of such evidence one year from the date of the request therefor. 38 C.F.R. § 3.109. The Board has reviewed the entire record. The Veteran was properly notified in September 2011 of the proposed stoppage of payment of his VA compensation due to an outstanding felony warrant, and less than a month later he was taken into custody and the warrant was cleared. He remained in federal custody until May 21, 2014, when he was released after serving a prison sentence for a felony conviction. Therefore, it is apparent that he never received VA’s December 2011 letter (because it was sent to a previous residential mailing address when he was imprisoned), notifying him that payment of his compensation benefits was stopped due to his outstanding felony warrant and his status as a “fugitive felon,” and more significantly, that for benefits to be resumed he must provide VA w official documentation regarding when his felony warrant was cleared. Within days following his release from federal custody, the Veteran applied to VA for reinstatement of his compensation benefits, but was never informed of the evidence necessary to complete his application for the resumption of payments. In other words, he was not furnished with proper notice that to have his benefits reinstated, he required official documentation that the warrant had been cleared when was taken into custody in October 2011 (and not just the official documentation he provided that showed he had been released from federal custody). In 2015, he again attempted to have his benefits reinstated, requesting expedited processing due to financial hardship, but the RO did not provide proper notice of the documentation needed to complete the application. In May 2016, he reached out to his congresswoman for assistance in the matter, whereupon, two years after the filing of his application for reinstatement of benefits, the RO reviewed his application on the merits and, on its own, sought the necessary evidence, which it received on June 16, 2016, the date it assigned for restoration of the Veteran’s benefits (payable on July 1, 2016). The proper effective date can be no earlier than the date that the warrant was cleared and that he was no longer considered a “felony fugitive” (i.e., October 12, 2011). However, the Veteran did not inform VA at the time he was taken into federal custody, and VA did not learn of the warrant clearance until June 16, 2016. Indeed, the Veteran was incarcerated at the time of the December 2011 notification that VA had stopped his benefits, and it is assumed he did not receive proper notice of the need to furnish evidence that the warrant in question had been cleared when he was taken into custody [for benefits to be restored]. Upon his release from prison nearly three years later, he immediately (on May 29, 2014) applied for resumption of his benefits, but VA failed to provide him notice of the specific evidence he had to furnish to complete the application. Instead, the RO took two years before it considered his application on the merits, and then obtained the necessary evidence on its own, without having given him opportunity to obtain and submit it. Considering the due process (notice) deficiencies in this case and the governing provisions regarding claims to reopen or resume compensation benefits, where the applicable date is the date of the receipt of the application, the effective date for reinstatement of the Veteran’s payment of VA disability compensation is May 29, 2014. U.S.C. §§ 501, 5110(a); 38 C.F.R. §§ 3.309, 3.400(r). To this extent, his claim for an earlier effective date for the resumption of benefits is granted. The Board notes that the Veteran was released from federal custody on May 21, 2014, and some statements reflect his argument that the effective date should be the date of his release (in other words, eight days earlier than this decision grants). The Board acknowledges the 38 C.F.R. § 3.665(i) provision regarding resumption of an award on the date of release from incarceration if VA receives notice of the release within one year following the release. Here however, VA did not terminate his benefits on the based on his incarceration but instead based on his fugitive felon status, which is addressed separately in 38 C.F.R. § 3.665(n). This provision does not include specific guidance regarding resumption of benefits once a veteran is no longer deemed a “fugitive felon,” as defined in the regulation, and the Board has applied the regulations for reopening a claim or resumption of benefits generally, as discussed above. Regardless, from a practical standpoint, the distinction is moot, as whether resumption of entitlement to benefits would be granted effective May 21, 2014 (as argued) or May 29, 2014 (as the Board grants), commencement of payment of the benefit would be from June 1, 2014 (see 38 C.F.R. § 3.31). George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.