Citation Nr: 20026042 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 16-42 859 DATE: April 15, 2020 REMANDED Entitlement to an apportionment of the Veteran’s Department of Veterans Affairs (VA) pension benefits to T., a dependent child, during a period of incarceration is remanded. The matter of whether an overpayment of VA pension benefits in the amount of $16,723.89, was properly created is remanded. Entitlement to waiver of the recovery of an overpayment of VA pension benefits in the amount of $16,723.89 is remanded. REASONS FOR REMAND In the January 2020 supplemental statement of the case (SOC), the VA AOJ provided additional explanation to the Veteran regarding discrepancies with the current amount of the overpayment. Under 38 U.S.C. § 1505, pension benefits are terminated effective the 61st day of imprisonment for a veteran who is incarcerated in a Federal, State or local penal institution for conviction of a felony. The Veteran’s benefits were terminated for two incarceration dates. The Veteran was paid pension benefits from April [REDACTED], 2013 through October [REDACTED], 2013. The 61st day of that incarceration was June [REDACTED], 2013. So, an overpayment was created for the period of June [REDACTED], 2013 through October [REDACTED], 2013. The debt totals $2,891.89. Thereafter, the Veteran was convicted again and the second period in question is from September [REDACTED], 2014 through August [REDACTED], 2015, with the 61st day of November [REDACTED], 2014. The debt from November [REDACTED], 2014 to August [REDACTED], 2015 was $13,832. The second debt was combined with the earlier debt and together they total $16,723.89. The Veteran requested that VA adjudicate the creation of the debt, an issue which was part of the reason for the Board remand in April 2019 and in December 2019. It was noted therein that the Veteran’s representative notified VA of the Veteran’s incarceration in a November 2014 letter from the Veteran’s attorney which informed VA that the Veteran was incarcerated at the Joe F. Gurney Unit facility in Palestine, Texas. See letter from Liebermann & Mark, PLLC, dated November 16, 2014. That matter was not addressed in the SSOC. The Board at this juncture notes that the matter of sole administrative error with regard to the second incarceration was raised. During the interim, following the Board’s remand, the Veteran perfected his appeal regarding entitlement to an apportionment of his pension benefits to T., his daughter, during his incarceration. The AOJ has denied that matter per a January 2020 statement of the case for that issue. The AOJ indicated that in order for an apportionment to be paid, proof of need is required and the VA Form 21-0788 the Veteran submitted did not include his daughter’s income or her custodian’s income. It was noted that her custodian, L.W., was sent a letter asking for a VA Form 0788 with their complete income information on December 3, 2019, but a reply had not been received. In March 2020, the Veteran submitted a VA Form 21-0788, but that was not addressed by the AOJ. VA regulations provide that if any individual to or for whom pension is being paid under a public or private law administered by VA is imprisoned in a Federal, State or local penal institution as the result of conviction of a felony or misdemeanor, such pension payments will be discontinued effective on the 61st day of imprisonment following conviction. The payee will be informed of his or her rights and the rights of dependents to payments while he or she is imprisoned as well as the conditions under which payments to him or to her may be resumed on his or her release from imprisonment. 38 C.F.R. § 3.666. However, no apportionment will be made if the veteran or the dependent is a fugitive felon. In the case where a veteran is incarcerated, but not considered a “fugitive felon,” veteran disqualified under this section: (1) If the veteran continues to be eligible for disability pension, payment may be made to the spouse, child or children of a except for the provisions of this section, and (2) If the annual income of the spouse or child is such that death pension would be payable. (3) At the rate payable under the death pension law or the rate which the veteran was receiving at the time of imprisonment, whichever is less. (4) From the day following the date of discontinuance of payments to the veteran, subject to payments made to the veteran over the same period, if an informal claim is received within 1 year after notice to the veteran as required by this section and any necessary evidence is received within 1 year from the date of request; otherwise payments may not be made for any period prior to the date of receipt of a new informal claim. 38 C.F.R. § 3.666 (a). The Board notes that the pertinent income inquiries are for the periods when the Veteran was incarcerated and not currently. It does not appear that the Veteran is cognizant of that information based on the information that he has submitted which appears to reflect his current income. Therefore, first, the Veteran should be provided the opportunity to furnish the financial information for his daughter T. and her custodian during his periods of incarceration. Thereafter, the matter of an apportionment should be reconsidered. Second, the AOJ should consider the November 2014 notification from the Veteran’s attorney regarding his second incarceration and whether there was sole VA error in the failure to take the proper action. Third, if an overpayment remains, the Veteran’s request for a waiver should be reconsidered. The matters are REMANDED for the following action: 1. Provide the Veteran the opportunity to furnish the financial information for his daughter T. and her custodian during his periods of incarceration. 2. Consider the claim for an apportionment for T. as outlined above and as made by the Veteran, and undertake an Apportionment Decision. 3. Reconsider the issue of whether the overpayment was properly created, to include the raised matter of sole administrative error, taking into consideration the November 2014 letter of the Veteran’s attorney. 4. If an overpayment remains, obtain a complete and current financial status report from the Veteran. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Connolly, 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.