Citation Nr: 21027654 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-09 417 DATE: May 6, 2021 ORDER The reduction in compensation benefits under 38 C.F.R. § 3.665(a) due to conviction and incarceration for a felony from September 11, 2013 to November 10, 2013 was not proper, and restoration of compensation payments for this period is granted. The reduction in compensation benefits under 38 C.F.R. § 3.665(a) due to conviction and incarceration for a felony applicable from November 11, 2013 was proper, and restoration of compensation payments as of November 11, 2013 is denied. FINDINGS OF FACT 1. On September 10, 2013, the Veteran completed his sentence for the conviction of rape of a minor. 2. The Veteran's sentence for the conviction of murder began on September 11, 2013. CONCLUSION OF LAW 1. The criteria for reduction of compensation from September 11, 2013 to November 10, 2013 under 38 C.F.R. § 3.665(a) have not been met. 38 U.S.C. § 5313(a); 38 C.F.R. § 3.665. 2. The criteria for reduction of compensation as of November 11, 2013, the 61st day after incarceration for a murder conviction, have been met. 38 U.S.C. § 5313(a); 38 C.F.R. § 3.665(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 compensation decision by the Department of Veterans Affairs (VA) Regional Office (RO). The RO determined that the Veteran's compensation should continue to be reduced because his incarceration continued for a conviction of murder after he had completed his sentence for rape of a minor. The Veteran submitted a notice of disagreement in January 2014. By a January 2015 statement of the case the RO determined that the Veteran was receiving the correct rate of compensation. The Veteran submitted his substantive appeal in January 2015, stating that he had not yet been convicted of the murder. The Veteran requested a Board hearing by live videoconference. In March 2021, the Veteran was sent a letter advising him that in order to proceed with the Board hearing it must be confirmed that the facility in which he is incarcerated is capable of holding a video teleconference hearing. The Veteran did not respond. Therefore, as advised in the March 2021 letter, the Board will decide the appeal based on the evidence of record. 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, 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). The term release from incarceration includes participation in a work release or halfway house program, parole, and completion of sentence. 38 C.F.R. § 3.665(b). In this case, the Veteran's compensation was originally reduced for his conviction and incarceration for rape of a minor child. The record reflects that the Veteran's incarceration for that conviction ended on September 10, 2013. The Board notes that due to a detainer for a murder charge, the Veteran was transferred from one correctional facility to another upon the completion of his period of incarceration for rape. Nonetheless, the Board finds that the Veteran was released from incarceration for the felony rape conviction on September 10, 2013 and thus the reduction in benefits under 38 C.F.R. § 3.665(a) for that conviction also ended on that date. In a January 2015 statement, the Veteran contended that he had not been convicted of the murder so his compensation should not have been reduced. However, prison/conviction information received in July 2017 indicates that the Veteran was indeed convicted of the murder and was sentenced to incarceration beginning September 11, 2013 and is not eligible for parole until 2042. Therefore, the Board finds that a reduction under 38 C.F.R. § 3.665(a) is proper due to incarceration for the felony murder conviction. However, a reduction under 38 C.F.R. § 3.665(a) becomes effective 61 days after incarceration. Here 61 days after September 11, 2013 is November 11, 2013. The conviction of murder is a separate conviction from that of rape of a minor child. As such, the Veteran was entitled to full compensation as of September 10, 2013, the end of his incarceration for his conviction of rape of a minor child; but reduction due to incarceration for the conviction of murder is applicable 61 days after his sentence began on September 11, 2013, which is November 11, 2013. As such, reduction of compensation due to the Veteran's incarceration for the conviction of murder should have been applied as of November 11, 2013, rather than simply continuing the reduction upon transfer from one correctional facility to another at the time of his completion of one period of incarceration and beginning of another. Accordingly, an adjustment in compensation, from September 10, 2013 to November 10, 2013 is granted; while the reduction of compensation due to incarceration related to felony conviction as of November 11, 2013 is found to be proper. Amanda Christensen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.