Citation Nr: 21067122 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-31 708 DATE: November 3, 2021 REMANDED Whether the creation of an overpayment of Department of Veterans Affairs (VA) compensation benefits due to fugitive felon status in the amount of $17,458.80, was properly created, to include waiver of recovery of overpayment, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1988 to December 1991 and from October 1993 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the October 2018 notification letter issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is associated with the Veteran's claims file. Whether the creation of an overpayment of VA compensation benefits due to fugitive felon status in the amount of $17,458.80, was properly created, to include waiver of recovery of overpayment, is remanded. In an October 2017 rating decision, the RO awarded VA compensation benefits to the Veteran based his claims for service connection, effective November 18, 2016, the date VA received his claims. In July 2018, the VA Office of Inspector General Fugitive Felon Program (FFP) identified an outstanding arrest warrant for the Veteran. According to the FFP-3 Form, the warrant was issued by the Mesa County Sheriff's Office in Colorado, on December 4, 2015, for an assault offense. The FFP-3 form did not provide a National Crime Information Center (NCIC) offense code. The FFP is relevant as VA law and regulations prohibit the payment of compensation benefits for any period during which a veteran was a fugitive felon. 38 U.S.C. § 5313B; 38 C.F.R. § 3.665(n). The term "fugitive felon" means 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. See 38 C.F.R. § 3.665(n)(2). The term "felony" includes a high misdemeanor under the laws of a state which characterizes as high misdemeanor offenses that would be felony offenses under Federal law. 38 C.F.R. § 3.665(n)(3). In clarifying the definition of "fugitive felon," in June 2014, the Undersecretary for Benefits of the Veterans Benefits Administration (VBA) issued new fugitive felon policy and procedures. See VBA Letter 20-14-09 (June 23, 2014). VBA Letter 20-14-09 indicated that VBA previously presumed that a beneficiary was a fugitive felon if he or she was the subject of any felony arrest warrant. The letter stated that, effective immediately, VBA no longer presumes that any valid outstanding felony arrest warrant establishes a beneficiary's fugitive felon status under 38 U.S.C. § 5313B. The letter further stated that VBA will request information only for beneficiaries who have a felony arrest warrant with a NCIC offense code indicating flight or a probation or parole violation. These codes are: 4901 - Escape 4902 - Flight to avoid prosecution 4999 - Flight-escape 5011 - Parole violation 5012 - Probation violation 8101 - Juvenile offender abscond while on parole 8102 - Juvenile offender abscond while on probation Thereafter, in August 2018, the RO notified the Veteran that information was received that he was the subject of a felony arrest warrant and proposed to stop his compensation benefits, effective December 4, 2015, as he may be a "fugitive felon;" then he was provided 60 days to show reason why his benefits should not be stopped. The warrant information provided showed warrant code "1399," with the same aforementioned information of the warrant agency and date of warrant. In October 2018, the Veteran submitted a copy of the probation agreement issued by the District Court in Mesa County. On review, the copy was a sentence order issued in June 2018 regarding his assault charges. The sentence order showed that the count involving Colorado Revised Statutes Section 18-3-203 was dismissed, and the Veteran entered a guilty plea to the count under Colorado Revised Statutes Section 18-3-204(1)(a), an assault in the third degree. Under Colorado Revised Statutes, Section 18-3-203 is a second degree assault that is a felony, but Section 18-3-204 is a third degree assault categorized as a misdemeanor. In October 2018, a VA employee verified with the Mesa County Sheriff's Office that the Veteran's warrant was canceled on February 28, 2018. In that same month, VA informed the Veteran that his compensation benefits were terminated based on his status as a fugitive felon, but that they would be reinstated, effective March 1, 2018, as the Mesa County Sheriff's Office informed them the warrant was cleared on February 28, 2018. The Veteran timely filed and later perfected an appeal to the validity of this debt. The Debt Management Center (DMC) issued a letter in November 2018 that informed him of the $17,458.80 owed as a result of the termination of his benefits for that particular period. In August 2019, the Veteran submitted a request for waiver. In September 2019, the Committee on Waivers and Compromises (COWC) denied his request on the basis that an application for waiver must be made within 180 days from the notification of the debt, or by the DMC in this case. See 38 U.S.C. § 5302(a); 38 C.F.R. § 1.963(b). The Veteran did not file an appeal regarding the timeliness of his waiver request. In this case, the Veteran disputes the underlying validity of the debt of $17,458.80, from overpayment of VA service-connected compensation benefits. In his statements and at the hearing before the undersigned, the Veteran attested that he never fled Colorado or tried to evade prosecution. See Hearing Transcript, page 3; October 2018 VA Form 21-4138, Statement in Support of Claim. He testified that upon his arrest in 2018 in Texas and after he was extradited back to Colorado, he resolved the charge of his misdemeanor assault in court. He testified that he was placed on probation and completed his sentence. See Hearing Transcript, page 7. He essentially contends that he never tried to flee or tried to avoid prosecution and therefore is not a fugitive felon. At the hearing and also as raised by the evidence of record, the Veteran also seeks a waiver of recovery of overpayment of VA compensation benefits in the amount of $17,458.80. Based on the current state of the record, a remand is necessary to determine if the Veteran was a "fugitive felon" per VBA Letter 20-14-09. The FFP-3 form did not provide a NCIC offense code, and the Board is unclear where the warrant code "1399" as referenced on the August 2018 letter by the RO originated from. In other words, there is insufficient information as to whether the December 2015 warrant is a "felony arrest warrant," especially in light of the fact that the June 2018 Mesa County District Court sentence order cited Colorado Revised Statutes for both a felony type and a misdemeanor type of assault. Therefore, a copy of the Veteran's December 2015 arrest warrant must be obtained on remand to determine whether the Veteran involved a felony charge or if the warrant included a NCIC offense code indicating flight or a probation or parole violation. Waiver of Overpayment At the hearing before the undersigned, the Veteran indicated his desire to have the overpayment waived. See Hearing Transcript, pages 3 and 10. Before adjudication of a waiver application, the lawfulness of a debt must first be determined. See Schaper v. Derwinski, 1 Vet. App. 430, 434-35 (1991) (noting that the propriety and amount of the overpayment at issue are matters that are integral to a waiver determination). Thus, the issue of entitlement to a waiver of overpayment is also remanded as inextricably intertwined with the validity of the debt issue. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As set forth above, the Veteran previously sought a waiver of overpayment in August 2019, which was denied in a September 2019 decision by the COWC for untimeliness. Because the Veteran did not appeal this timeliness, this would ordinarily render the September 2019 COWC decision final. However, any decision with regard to a request for a waiver of overpayment was premature because the validity of the debt had not been established. Thus, the Board finds that the September 2019 COWC decision denying a waiver of overpayment is void ab initio and that the request for a waiver is timely. In addition, the evidence showed that the Veteran submitted an address change in May 2018, but on review, the November 2018 DMC letter was sent to his old mailing address. Thus, for this additional reason, a waiver request is considered timely. The matter is REMANDED for the following actions: 1. Contact the appropriate agency, to include the Mesa County Sheriff's Office, to obtain a copy of the December 4, 2015, warrant. 2. Contact the Veteran and ask him to submit a copy of his arrest warrant, if available. 3. Then determine whether the warrant included a NCIC offense code indicating flight or a probation or parole violation. 4. The RO should take whatever additional action is deemed necessary to adjudicate the question of whether the Veteran was actually a "fugitive felon" under VA policy guidance, to include referring to the Fugitive Felon Coordinator for proper procedure. 5. After the above development has been completed, adjudicate the Veteran's challenge to the validity of the debt in the amount of $17,458.80. If it is determined that the debt is valid, refer the issue of entitlement to waiver of overpayment to COWC for adjudication. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.