Citation Nr: 21022027 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-06 975 DATE: April 14, 2021 ORDER The appeal as to waiver of recovery of an overpayment of Department of Veterans Affairs (VA) nonservice connected (NSC) pension benefits, to include the question of whether the overpayment was properly created due to fugitive felon status from August [REDACTED], 2010 to November [REDACTED], 2010 is dismissed. FINDING OF FACT A September 2020 decision on waiver of indebtedness reflects that the Committee on Waivers and Compromises (COWC) granted the Veteran’s waiver of recovery of overpayment of VA NSC pension benefits. CONCLUSION OF LAW The Board lacks jurisdiction over the claim of entitlement to waiver of recovery of an overpayment of VA NSC pension benefits, to include the question of whether the overpayment was properly created due to fugitive felon status from August [REDACTED], 2010 to November [REDACTED], 2010, because that claim has been granted and rendered moot. 38 U.S.C. §§ 7104, 710; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to September 1991. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 decision issued by the COWC of the VA RO and Insurance Center in Philadelphia, Pennsylvania. Most recently, in November 2020, the Board remanded the issue for further development. Specifically, the Board instructed the RO to contact the VA Office of Inspector General (OIG) to determine if the Veteran was a “fugitive felon, ” to include whether the National Crime Information Center (NCIC) offense code was consistent with flight or a probation or parole violation. Correspondence received from the OIG Criminal Investigation Division reflects that the Veteran’s NCIC offense code was a probation violation. The requested development has been completed and the case has been returned for appellate disposition. 1. Entitlement to waiver of recovery of an overpayment of VA NSC pension benefits, to include the question of whether the overpayment was properly created due to fugitive felon status from August [REDACTED], 2010 to November [REDACTED], 2010 Historically, Superior Court of Cobb County, Georgia documents reflect that the Veteran pled guilty to 2 counts of child abandonment in July 2008. He was ordered to pay child support and he received 3 years of probation. VA OIG case number [REDACTED] reflects that a warrant was issued for the Veteran’s arrest on August [REDACTED], 2010 (for failure to pay child support, i.e., a violation of his probation). 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). VBA will discontinue benefits based on fugitive felon status only if: A judge issued a felony arrest warrant with a National Crime Information Center (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 an April 2011 letter, VA notified the Veteran that it proposed to terminate his NSC pension benefits effective August [REDACTED], 2010 because he was a “fugitive felon” (i.e., the subject of an outstanding warrant). In August 2011, VA notified the Veteran that it had not received official documentation showing that the warrant had been cleared. So, his NSC pension benefits were terminated beginning August [REDACTED], 2010. As a result of this action a debt was created. In September 2011, the Cobb County Sherriff’s offices notified VA that the Veteran was arrested on November [REDACTED], 2010, which satisfied and cleared the warrant. Cobb Judicial Circuit Court documents reflect that the Veteran was released from prison on bond on January [REDACTED], 2011. An October 2011 VA financial actions document reflects that the original amount of the debt calculated was $12,602.10 covering the period from August [REDACTED], 2010 to July 31, 2011. However, after his NSC pension benefits were reinstated the Veteran was entitled to NSC pension payments from January 14, 2011 to July 31, 2011 in the calculated amount of $6,954.10. Thus, the Veteran’s debt was reduced to $5,648 ($12,602.10 (original debt amount) - $6,954.10 (total reinstated pension benefits from January 14, 2011 to July 31, 2011). The Veteran applied for waiver of recovery of an overpayment of VA NSC pension benefits and in a September 2011 decision, the COWC denied the Veteran’s request for waiver of recovery of the debt in the amount of $5,648 (the Veteran was notified of the decision in October 2011). The Veteran’s notice of disagreement (NOD) to this decision was received in November 2011. A December 2011 VA audit reflects that the Veteran was entitled to reinstatement of NSC pension the date his warrant cleared, November [REDACTED], 2010 (the date of his arrest). Thus, VA owed the Veteran a retroactive amount of $1,659.10. This action further reduced his debt total to $3,988.90. The Veteran perfected his appeal of entitlement to waiver of recovery of an overpayment of VA NSC pension benefits in the amount of $3,988.90 in January 2012. The term “overpayment” refers only to those benefit payments made to a designated living payee or beneficiary in excess of the amount due or to which such payee or beneficiary is entitled. Absent fraud, misrepresentation, or bad faith, a waiver of indebtedness may be authorized in a case in which collection of the debt would be against equity and good conscience. 38 U.S.C. § 5302(b); 38 C.F.R. §§ 1.962, 1.963, 1.965. However, there shall be no waiver of an overpayment, or any interest, in any case where there is an indication of fraud or misrepresentation of a material fact on the part of the debtor. 38 U.S.C. § 5302(c). A waiver of indebtedness may be authorized in a case in which collection of the debt would be against equity and good conscience. 38 U.S.C. § 5302; 38 C.F.R. § 1.963. Regardless of the above and the development previously ordered by the Board in April 2014, November 2017 and November 2020, the Veteran’s request for waiver of recovery of an overpayment of VA NSC pension benefits in the amount of $12,602 was granted in a decision issued by the COWC in September 2020. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. Here, because of the COWC’s action, there no longer remains a case or controversy with respect to this claim. Therefore, the Board lacks jurisdiction over this issue because it has been granted and rendered moot on appeal. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. Therefore, dismissal of this claim is warranted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.