Citation Nr: 20046871 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 19-36 605 DATE: July 13, 2020 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits was properly created for the periods of November 30, 2012, to May 28, 2013, and May 29, 2013, to May 4, 2017, due to a retroactive reduction in the compensation rate to the 10 percent rate as of the 61st date of the Veteran’s felony convictions; the appeal is denied. FINDINGS OF FACT 1. The Veteran was incarcerated due to a felony on November 30, 2012; the 61st day of incarceration was January 30, 2013. 2. The Veteran was incarcerated due to a felony parole violation on May 29, 2013; the 61st day of incarceration was July 29, 2013. 3. The Regional Office (RO) retroactively reduced the Veteran’s compensation benefits which were being paid at the 70 percent rate to the 10 percent rate, and this action resulted in an overpayment. CONCLUSION OF LAW The overpayment of VA compensation benefits was properly created for the periods of November 30, 2012, to May 28, 2013, and May 29, 2013, to May 4, 2017, due to a retroactive reduction in the compensation rate to the 10 percent rate as of the 61st date of the Veteran’s felony convictions. 38 U.S.C. § 5313 (2012); 38 C.F.R. § 3.665 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1992 to February 1996. The matter on appeal comes before the Board from an August 2017 decision letter. The Veteran appealed the validity of a debt created due to his incarceration. The Board observes that the Veteran also requested a waiver of the debt and the matter of the waiver was decided in a June 2020 decision. To date, no appeal has been filed related to the matter of the waiver. Should the Veteran appeal that decision it will be adjudicated in a separate Board decision. The decision herein is limited to the validity of the debt created. In May 1996, the Veteran was granted service-connected benefits. He was provided VA Form 21-8764 at that time, which states, in pertinent part, that compensation is subject to future adjustment, and that “benefits will be reduced upon incarceration in a Federal, State, or local penal institution in excess of 60 days for conviction of a felony.” This notice complies with VA law and regulation. Under pertinent VA laws and regulations, any individual who is entitled to compensation or to dependency and indemnity compensation and who is incarcerated in a Federal, State, local, or other penal institution or correctional facility for a period in excess of sixty days for conviction of a felony (where, as here, was committed after October 7, 1980) shall not be paid such compensation or dependency and indemnity compensation, for the period beginning on the sixty-first day of such incarceration and ending on the day such incarceration ends, in an amount that exceeds (A) in the case of a veteran with a service-connected disability rated at 20 percent or more, the rate of compensation payable under section 1114(a) of this title; or (B) in the case of a veteran with a service-connected disability not rated at 20 percent or more or in the case of a surviving spouse, parent, or child, one-half of the rate of compensation payable under section 1114(a) of this title. 38 U.S.C. § 5313(a); 38 C.F.R. § 3.665(a). In April 2013, VA received information indicating the Veteran had been imprisoned as of November 30, 2012. Additional information received in December 2013 noted a date of confinement of May 1, 2013. VA sought additional information from Michigan Corrections in May 2017, after which the full dates of incarceration were confirmed. A June 2017 Report of Incarceration shows that the Veteran was incarcerated following a felony conviction from November 30, 2012, to May 28, 2013, and then incarcerated for a parole violation from May 29, 2013, to May 4, 2017. The Veteran has not disputed that he was incarcerated as of these dates. In June 2017, VA advised the Veteran that VA proposed to retroactively reduce his VA benefits based on his incarceration. In August 2017, he was again advised that his benefits would be retroactively reduced on the 61st day of incarceration which was January 30, 2013 for the first period of incarceration, and July 29, 2013 for the second period of incarceration. The RO retroactively reduced the Veteran’s compensation benefits, which were being paid at the 70 percent rate to the 10 percent rate. This action was in accordance with VA law and regulation. 38 U.S.C. § 5313(a); 38 C.F.R. § 3.665(a). Therefore, the creation of the debt was proper. The Veteran’s appeal as to the validity of the debt created is denied. Again, this action resulted in an overpayment debt for which the Veteran requested a waiver. A decision as to the waiver was issued in June 2020. As of the date of this decision, the Veteran has not appealed the denial of the waiver and this issue, therefore, is not before the Board. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.