Citation Nr: 21073870 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 20-00 719 DATE: December 13, 2021 ORDER The overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $52,936.13 was properly created due to the Veteran being identified as a fugitive felon from August 21, 2014 to February 29, 2016; the appeal is denied. FINDING OF FACT 1. The preponderance of the evidence shows the Veteran had a fugitive felon warrant for probation violation issued in New Hampshire on August 21, 2014 and cleared on February 29, 2016. 2. At the time the warrant was cleared, there is no indication that there was a specific determination that the warrant was void from its inception because of mistaken identity or a defect in the warrant; and there is no court order specifically stating that the recall was effective from a specific date that is on or before the date of the warrant, or uses the terminology nunc pro tunc, which refers to changing back to an earlier date. CONCLUSION OF LAW The termination of the Veteran's VA compensation benefits from August 21, 2014 to February 29, 2016 based on his being a fugitive felon was proper; thus, the $52,936.13 debt was properly created. 38 U.S.C. § 5313B; 38 C.F.R. § 3.665(n). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1984 to July 1987, and from January 1991 to May 1991. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2018 administrative decision by the VA Regional Office (RO) to terminate the Veteran's compensation benefits effective August 21, 2014 and reinstate them February 29, 2016 due to the Veteran's fugitive felon status during that time period. The Veteran has appealed this decision and suggests this is not a valid debt because he was not a fugitive felon. Effective December 27, 2001, the law prohibits 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. 38 C.F.R. § 3.666(e)(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. § 3.666(e)(3). In June 2014, the Undersecretary for Benefits of the Veterans Benefits Administration (VBA) issued new fugitive felon policy and procedures. 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 National Crime Information Center (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. VBA will discontinue benefits based on fugitive felon status only if: A judge issued a felony arrest warrant with a NCIC offense code indicating flight or a probation or parole violation; VA provided the beneficiary notice regarding the reason for the warrant and an opportunity to present evidence, such as an acknowledgment of the validity of the warrant or failure to respond to the due process notification, or that he or she did not flee from justice or did not violate any condition of probation or parole; and VA determines, based upon the warrant and evidence submitted by the beneficiary (if any), that the beneficiary was fleeing from justice or violated a condition of probation or parole. When a warrant is dismissed, recalled, or quashed, there was still a valid warrant up until the date the warrant was cleared and VA benefits are subject to adjustment from the warrant date until the date it is recalled, dismissed, or quashed, unless there was a specific determination that the warrant was void from its inception because of mistaken identity or a defect in the warrant, or the court order specifically states that the recall is effective from a specific date that is on or before the date of the warrant, or uses the terminology nunc pro tunc, which refers to changing back to an earlier date. In this case, the Veteran is service connected for posttraumatic stress disorder and has been in receipt of a 70 percent disability rating since March 8, 2012. In January 2017, the RO received information indicating the Veteran had a warrant for this arrest effective August 21, 2014. The information received includes a NCIC file number and an indication that this warrant was for a probation violation. Thus, this information met the criteria for a fugitive felon warrant under the updated fugitive felon policy and procedures. The Board recognizes this record shows there was information related to the Veteran in both the State of Vermont and the State of New Hampshire. The RO wrote to the Veteran in March 2018 and notified him of this information and indicated the proposal to terminate his benefits effective August 21, 2014. The Veteran was informed that he had 60 days to provide information to show this termination of benefits was not warranted. The record shows the United States Postal Service (USPS) returned the March 2018 communication as undeliverable. The RO resent the letter in May 2018. In July 2018, the RO added a memorandum to the file to document a phone call with the New Hampshire Trial Court/Cheshire Superior Court. A representative of the court confirmed that the Veteran had a felony warrant dated August 21, 2014, which was cleared on February 29, 2016. The RO also spoke with the Cheshire County Department of Corrections on this date and confirmed that the Veteran had not been incarcerated since 2011. The RO noted on this memorandum that the only action to be taken was to stop benefits from August 21, 2014 to February 29, 2016. The RO then, in July 2018, notified the Veteran that action proposed was being taken. The notification included notice that the RO was terminating the Veteran's benefits effective August 21, 2014, and reinstating them February 29, 2016, the date the felony warrant was cleared. This retroactive adjustment created a $52,936.13 debt. The Veteran was notified of this debt by way of a letter from the VA Debt Management Center (DMC) in August 2018. In June 2018, the Veteran filed a Notice of Disagreement (NOD) and indicated that he had information from the court and the Sheriff's Office showing that the information was incorrect. The Veteran suggested he had faxed this paperwork to VA. A fax was received by VA in June 2018, which was a copy of a Cheshire Superior Court Case Summary for the Veteran. This document shows the warrant having been issued on August 21, 2014 and withdrawn on February 29, 2016. Thus, the information provided by the Veteran shows information consistent with the action taken by the RO. In June 2019, the Veteran again wrote to VA and indicated he had sent in court information showing this was a closed case. The Veteran suggested the Court and Sherriff's Department had deemed the warrant to be incorrect and closed the case. In October 2019, the RO wrote to the Veteran recognizing his report that the Court and Sheriff's Department had deemed the Veteran's felony status as incorrect and closed. The RO informed the Veteran that they had no documentation showing this and invited him to submit the information he was referencing within 30 days. The Veteran did not respond within those 30 days and the statement of the case (SOC) was issued in November 2019. The Veteran then filed his VA Form 9 in December 2019 and again reported that the felony information VA possessed was incorrect. With his VA Form 9, the veteran submitted a statement from the State of New Hampshire Department of Corrections dated in August 2019. This letter indicated, "Per your request this letter is to confirm that you successfully completed your term of court ordered probation back in 2015. Records show you did have a pending violation that was filed in 2014 but this violation was later dismissed in 2016." In July 2021, the Veteran's representative submitted additional evidence in support of the Veteran's appeal. One of these documents was a Vermont Superior Court case summary. This showed an August 2014 arraignment related to a domestic assault charge. A September 2014 entry indicates an arrest warrant had been issued due to a failure to appear. An entry one day later shows the arrest warrant had been served and the Veteran arrested, with an indication that the Veteran had not received notice of the hearing such that the arrest warrant was stricken. A May 13, 2015 entry indicates the matter was dismissed by the state and the case was closed. Again, this is information from a Vermont court. Also submitted, was another case summary from Cheshire Superior Court showing the warrant issued on August 21, 2014 and dismissed on February 29, 2016. The Board again notes that Cheshire County is in New Hampshire. The documents submitted in July 2021 indeed provide some clarity for the Board, as it appears there were warrants in both Vermont and New Hampshire. While the document shows the warrant in Vermont was almost immediately cleared, the information related to New Hampshire is consistent with the other information of record showing a warrant issued on August 21, 2014 and cleared on February 29, 2016. There is no indication in any of the documentation of the August 21, 2014 to February 29, 2016 fugitive felon status that there was a specific determination that the warrant was void from its inception because of mistaken identity or a defect in the warrant; and there is no court order specifically stating that the recall was effective from a specific date that is on or before the date of the warrant, or uses the terminology nunc pro tunc, which refers to changing back to an earlier date. Accordingly, the preponderance of the evidence establishes that the Veteran was a fugitive felon, as defined by VA law and regulation, in the state of New Hampshire from August 21, 2014 to February 29, 2016, and termination of his VA benefits for that time period was proper. Thus, the $52,936.13 debt was properly created. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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.