Citation Nr: 21072294 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-29 709 DATE: December 2, 2021 ORDER The reduction in compensation benefits under 38 C.F.R. § 3.665(a) due to conviction and incarceration for a felony from July 7, 2018 was not proper, and restoration of compensation payments is granted. FINDING OF FACT The Veteran's incarceration on May 7, 2018 was not due to a conviction under Florida law. CONCLUSION OF LAW The criteria for reduction of compensation from July 7, 2018 due to conviction and incarceration have not been met. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to December 1969, and from August 1977 to December 1977. The claim is on appeal from a January 2019 decision. Reduction in compensation benefits from July 7, 2018 due to incarceration. Legal Criteria Under 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, 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 38 U.S.C. § 1114(a); 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 38 U.S.C. § 1114(a). 38 U.S.C. § 5313(a); 38 C.F.R. § 3.665(a). VA policy provides that in instances of reincarceration for the same conviction following a period of release, e.g., due to a parole violation or dismissal from a halfway house or work release program, the Veteran's compensation will equally be reduced pursuant to the provisions of 38 U.S.C. § 5313(a) and 38 C.F.R. § 3.665(a). VA's Office of General Counsel (OGC) issued a precedential opinion stating that in order for the provisions of 38 U.S.C. § 5313 to be met, (1) the beneficiary must be incarcerated in a penal institution in excess of 60 days, and (2) the incarceration must be for the conviction of a felony. The OGC concluded that in the absence of a clearly expressed legislative intent to the contrary, unambiguous statutory language must be regarded as conclusive, and that the law requires that both elements of 38 U.S.C. § 5313, incarceration and conviction, must be present to warrant a reduction in benefits. VAOPGCPREC 2-1996 (May 13, 1996). Analysis In this case, the Veteran's compensation was reduced upon the sixty-first (61) day following incarceration due to a possible probation violation. The record reflects that in September 2015, the Veteran was charged with a felony for battery on an elderly person. In June 2016, he pled nolo contendere, and a Judgment was entered of "Adjudication of Guilt Be Withheld," and the Veteran was placed on probation for a period of four years. Thereafter, in May 2018, the Veteran was arrested and incarcerated, charged with first degree murder, felony cruelty to a cat, and possession of a firearm by a convicted felon. At that time, his prior June 2016 case was reopened for violation of probation. Both the June 2016 and May 2018 criminal cases have been repeatedly delayed, and at this time still await trial or other adjudication. In May 2018, the RO received information that the Veteran was incarcerated. In an August 2018 letter, the RO notified the Veteran of a proposed reduction to his benefits due to his incarceration. By a January 2019 letter, he was informed that his compensation benefits were reduced effective July 7, 2018, the 61st day of incarceration following conviction of a felony. At that time, the Veteran was rated at a 100 percent evaluation for his service-connected posttraumatic stress disorder (PTSD). Here, as the record is clear that the Veteran has been incarcerated since May 2018, the issue of whether the Veteran has been "convicted" of a felony is determinative as to whether the reduction in the Veteran's compensation benefits under 38 C.F.R. § 3.665(a) was proper. Black's Law Dictionary defines "conviction" to include "the state of having been proved guilty," and "found guilty," or "a court's acceptance of a plea of guilty..." Black's Law Dictionary (11th ed. 2019). The Merriam-Webster Dictionary defines conviction as "the act or process of finding a person guilty of a crime especially in a court of law." See https://www.merriam-webster.com/dictionary/adjudicate. Title 38 of the United States Code does not provide a definition for the word "conviction" and any definition provided by a separate title would not be applicable. Therefore, the common meaning of the word must be applied to the statute. The common meaning provided by Black's Law Dictionary and the Merriam-Webster Dictionary clearly indicates that a conviction results from the consummation of the case resulting in a judgment of guilty. In his October 2019 VA Form 9 Appeal to the Board, the Veteran contends that he has not been convicted of a felony from the June 2016 charges, but rather had adjudication withheld, so his compensation should not have been reduced. He points to Florida Statute 948.01 with regard to withholding of adjudication, and attached a copy of his court docket and the June 2016 Judgment checking that "IT IS ORDERED THAT ADJUDICATION OF GUILT BE WITHHELD." Florida Statute 948.01 provides in part: [T]he court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt. In either case, the court shall stay and withhold the imposition of sentence upon the defendant and shall place a felony defendant upon probation. The June 2016 Judgment indicates adjudication of the Veteran's guilt be withheld while he was on probation for four years, following his plea of nolo contendere. While he has since been incarcerated for violation of that probation, and the criminal case reopened for the September 2015 charges, at this time he has still not been found guilty or "convicted" of the crime charged, within the common meaning of the word. Thus, while the element of incarceration has been met, the element of conviction has not, in order to warrant a reduction in compensation benefits. See 38 U.S.C. § 5313(a); 38 C.F.R. § 3.665(a); VAOPGCPREC 2-1996. Therefore, the Board finds that a reduction of compensation benefits under 38 C.F.R. § 3.665(a) since July 7, 2018, was improper, as the Veteran was not incarcerated due to a conviction. As such, restoration of the Veteran's compensation payments since July 7, 2018 is granted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, Associate 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.