Citation Nr: 22008063 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 16-34 450 DATE: February 11, 2022 REMANDED Propriety of the termination of payment of Department of Veterans Affairs (VA) disability compensation benefits to the Veteran due to status as a fugitive felon from May [REDACTED], 2014 to June [REDACTED], 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1989 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a November 2015 rating decision by a VA Regional Office, which is the Agency of Original Jurisdiction (AOJ). In February 2020, the Board remanded the appeal for further development, and it now returns for adjudication. Propriety of the termination of payment of VA disability compensation benefits to the Veteran due to status as a fugitive felon from May [REDACTED], 2014 to June [REDACTED], 2014. The Veteran generally contends that the termination of payment of VA compensation benefits from May [REDACTED], 2014 to June [REDACTED], 2014, due to fugitive felon status was improper. In February 2020, the Board noted that the nature of the arrest warrant and whether there was a NCIC code indicating flight or a probation or parole violation is not clear. In this regard, the August 2015 proposal to stop benefits included some of the warrant information, noting it was issued on May [REDACTED], 2014, and it was for a "PROBATION VIOLATION SEE MIS," without any further info. In September 2015, VA received notice from the Veteran's supervising probation agent, confirming that a warrant was issued on May [REDACTED], 2014, and it was cancelled on June [REDACTED], 2014, after the Veteran was apprehended in South Carolina. The record did not include information regarding the National Crime Information Center (NCIC) offense code, as required per guidance from a 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 [REDACTED], 2014). Thus, the Board remanded for the AOJ to contact the VA Office of Inspector General (OIG) and/or other appropriate agency and request that it takes necessary steps to determine if the Veteran was a "fugitive felon" in accordance with 38 U.S.C. § 5313B. In May 2021, the AOJ contacted the Wisconsin Department of Corrections and spoke with the Veteran's case worker. See May 2021 VA 21-0820 Report of General Information. The case worker confirmed the May 2014 warranted was issued due to a probation violation, with an NCIC offense code of 5012, which correlates to probation violation. The case worker also confirmed that the Veteran was apprehended by another law enforcement agency, at which time the warrant was cancelled. Id. Unfortunately, while the information gained on remand confirmed the purpose of the warrant for a probation violation, the record is not clear as to whether the probation was imposed for the commission of a felony. Stated another way, the decision did not establish that the underlying offense was a felony. In this regard, the law prohibits the payment of compensation benefits for any period during which a veteran is a fugitive felon. 38 C.F.R. § 5313B. As relevant, the term fugitive felon means a person who is a fugitive by reason of: (ii) violating a condition of probation or parole imposed for commission of a felony under Federal or State law. 38 C.F.R. § 3.665(n). The record is not clear as to the nature of the underlying offense for which probation was imposed. Notably, the Veteran's treatment records include notes of recent legal issues due to child support evasion in Wisconsin. See September 2014 VA Mental Health Treatment Note. Child support evasion can be a felony or a misdemeanor depending on certain circumstances. See Wis. Stat. § 948.22. Consequently, a remand is necessary to determine the nature the underlying offense for the imposition of probation, and whether the Veteran was in violation of probation imposed for commission of a felony. The matter is REMANDED for the following action: 1. The AOJ should take appropriate measures necessary to determine if the underlying offense for the imposition of probation violated by the Veteran was a felony offense under Wisconsin law, to include contacting the appropriate state authority, such as the Wisconsin Department of Corrections and County Clerks. The RO should document the attempts to obtain such information. Any negative responses should be associated with the claims file. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.