Citation Nr: 22013946 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-08 496 DATE: March 11, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right shoulder disability is reopened. The claim of restoration of Department of Veterans Affairs (VA) compensation benefits that were terminated effective from September 3, 2014, to August 21, 2019, due to fugitive felon status is denied. The claim of restoration of VA compensation benefits that have been terminated since August 22, 2019, due to fugitive felon status is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. In a June 2009 rating decision, a VA regional office (RO) denied entitlement to service connection for a right shoulder disability on the grounds that the right shoulder disability was not incurred in or aggravated by active service. The Veteran was notified of that decision but did not appeal that decision. 2. The Veteran's testimony at the July 2021 hearing that he had right shoulder symptomatology in service and that he continues to have right shoulder symptomatology when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a right shoulder disability. 3. A fugitive felon warrant was issued against the Veteran on September 27, 2007, for a probation violation regarding a felony conviction. 4. There is not clear evidence to the contrary showing that a fugitive felon warrant was not issued against the Veteran on September 27, 2007, by a superior court of a county in Georgia, for a probation violation regarding a felony offense. 5. The Veteran's warrant was cleared on August 22, 2019. 6. The Veteran was not entitled to receive VA compensation benefits from September 3, 2014, to August 21, 2019, because he was a fugative felon during that time period. 7. The Veteran is entitled to receive VA compensation benefits since August 22, 2019, because he was no longer a fugative felon during that time period. CONCLUSIONS OF LAW 1. The October 2009 rating decision, which denied service connection for a right shoulder disability, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 19.20 (2021). 2. The evidence received since the October 2009 rating decision is new and material, and the claim of entitlement to service connection for a right shoulder disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 3. The criteria for entitlement to the restoration of VA compensation benefits from September 3, 2014, to August 21, 2019, that were terminated due to fugative felon status were not met. 38 U.S.C. §§ 5103, 5103A, 5313B (2012); 38 C.F.R. § 3.665(n) (2021). 4. The criteria for entitlement to the restoration of VA compensation benefits since August 22, 2019, that were terminated due to fugative felon status are met. 38 U.S.C. §§ 5103, 5103A, 5313B; 38 C.F.R. § 3.665(n). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1981 to February 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 VA RO rating decision denying the reopening of a claim of service connection for a right shoulder disability and a July 2018 VA RO determination terminating VA compensation benefits. In July 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. In an April 2009 administrative decision, a RO determined that the Veteran's service from October 1981 to September 23, 1985, was honorable and that he is entitled to health care benefits for any disability determined to be service connected for this period of service. In a September 2017 administrative decision, a RO determined that the Veteran's service from October 1981 to October 5, 1985, was honorable and that he is entitled to health care benefits for any disability determined to be service connected for this period of service. The RO also determined that the Veteran's service from October 6, 1985, to February 1988 was honorable but that he is not entitled to health care benefits for any disability determined to be service connected for this period of service. Subsequent to a February 2020 statement of the case on the issue of termination of VA compensation benefits, the RO in January 2022 received a statement from the superior court of the county in Georgia indicating that the Veteran does not have an outstanding warrant with this agency. As this information pertains to the period that the Board is restoring VA compensation benefits, a waiver of agency of original jurisdiction (AOJ) consideration of this evidence by the Veteran and his counsel is unnecessary. 38 C.F.R. § 20.1305 (2021). Moreover, it is duplicate of evidence submitted by the counsel in July 2021 regarding the dismissal of the warrant. As noted in the findings of facts and conclusions of law, the Board is reopening the claims of entitlement to service connection for a right shoulder disability. Fugative Felon Status 1. Whether VA compensation benefits were correctly terminated effective from September 3, 2014, to August 21, 2019, due to "fugitive felon" status 2. Whether VA compensation benefits have been correctly terminated since August 22, 2019, due to "fugitive felon" status Governing law and regulations Effective December 27, 2001, the law was amended to prohibit 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 includes a person who is a fugitive by reason of 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 violating a condition of probation or parole imposed for commission of a felony under Federal or state law. Id. While fugitive is not specifically defined by the governing statute and regulation, Black's Law Dictionary (8th Ed. 2004) defines "fugitive" as a person who flees or escapes; a refugee; or as a criminal suspect or a witness in a criminal case who flees, evades, or escapes arrest, prosecution, imprisonment, service of process, or the giving of testimony, especially by fleeing the jurisdiction or by hiding. Analysis In the November 2013 rating decision, a RO granted service connection for posttraumatic stress disorder (PTSD) effective March 30, 2012, and assigned a 70 percent disability rating that same date. In an April 2015 rating decision, a RO granted entitlement to a total disability rating based on individual unemployability (TDIU) effective May 9, 2014. A petition for dismissal of probation warrant dated on August 14, 2019, reflects that in 1995 the Veteran pled guilty to two counts of cruelty to children. VA treatment records reflect that in September 2007, the Veteran reported that he served 10 years in prison for those charges. The August 2019 petition for dismissal of probation warrant reveals that on September 27, 2007, a warrant was issued for the arrest of the Veteran for violation of a general condition of his probation to pay money in equal periodic increments of $30 a week beginning 30 days after his release. A January 24, 2017, FFP-3 VA Investigative Summary Form for the VA Office of Inspector General fugitive felon program shows that another warrant was issued on September 3, 2014, for a probation violation from a superior court in a county in Georgia. Similarly, a December 26, 2017, FFP-3 VA Investigative Summary Form for the VA Office of Inspector General fugitive felon program reflects that another warrant was issued on September 3, 2014, for a probation violation from a superior court in a county in Georgia. A July 2018 report of general information reveals that a county sheriff confirmed that the September 3, 2014, warrant is still active. In the July 2018 determination, VA compensation benefits were terminated effective September 3, 2014, because of the Veteran's fugitive felon status. In his September 2018 notice of disagreement, the Veteran argued that the states of Georgia and Massachusetts approved a transfer of any parole from Georgia to Massachusetts in July 2006 and that he did not flee Georgia. He stated that the sheriff department claiming he is fugitive felon running from his probation is totally bogus and false. In a September 2018 statement, the Massachusetts Parole Board indicated that it could not provide any information that was generated by the Georgia State Board of Pardons and Parole. The parole board noted that the Veteran's transfer to Massachusetts through the Interstate Compact was accepted by that parole board in September 2006 and that his parole discharge date for that commitment was in December 2006. The August 2019 petition for dismissal of probation warrant reveals the petitioner, a community supervision officer, stated that it would be in the interest of justice for the September 27, 2007, warrant to be dismissed because the Veteran's case has expired while incarcerated in another state. On August 22, 2019, the warrant was dismissed by a judge. At the July 2021 hearing, the Veteran's counsel argued that the fugitive felon statute has an equity provision and that the warrant was issued only because the Veteran owed court costs. Hearing transcript, page 10. The counsel noted that the court costs were much less than the VA compensation benefits that the Veteran was supposed to receive. Id. The Veteran testified that when he moved to Massachusetts, he was told by his parole officer that Georgia no longer had jurisdiction. Id. He stated that he learned of the outstanding warrant in 2015 during a routine traffic stop. Id. at 10-11. The counsel argued that the Veteran did not have sufficient mental capacity to deal with the outstanding warrant and that the warrant was eventually dismissed. Id. at 13-14. In a December 2021 statement, the Veteran noted that the warrant from Georgia was withdrawn and that he is entitled to back pay from that mix-up since 2018. In a January 2022 VA Form 21-4193 (notice to VA of Veteran or beneficiary incarcerated in penal institution), the relevant superior court in a county in Georgia stated that the Veteran does not have any outstanding warrant with this agency. The Board first notes that statute pertaining to fugitive felons does not have an equity provision. Therefore, the Board cannot consider the fact that court costs that the Veteran owed were much less than the VA compensation benefits. Similarly, the Board cannot consider the Veteran's mental status when he learned of the outstanding warrant. The Veteran and his counsel may raise issues of equity in requesting a waiver from any overpayment of compensation benefits due to fugative felon status. The Veteran essentially argues that he was not a fugitive felon because there was no pending felony charge against him in Georgia when he moved to Massachusetts and that he had not fled Georgia. The Board notes that a fugitive felon is not merely a fugitive by reason of 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. A fugitive felon is also someone who is a fugitive violating a condition of probation or parole imposed for commission of a felony under Federal or state law. To the extent the Veteran that is arguing that the warrant is invalid because he was living in Massachusetts at the time it was issued and that Massachusetts had jurisdiction over all his criminal matters pursuant to an interstate compact, the Board notes that there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). The presumption of regularity is not absolute; it may be rebutted by the submission of "clear evidence to the contrary." Statements made by the Veteran, however, are not the type of clear evidence to the contrary that would be sufficient to rebut the presumption of regularity. Jones v. West, 12 Vet. App. 98, 102 (1999). The presumption of regularity in this case is not rebutted because the only evidence to the contrary is the Veteran's statements. Although the petitioner asked that the warrant was dismissed in the interest of justice, the petition does not indicate that the warrant was invalid. Moreover, the dismissal of the warrant is not evidence that it was invalid. The Board finds that there is not clear evidence to the contrary showing that the warrants were not vaild. The Veteran served 10 years in prison for two counts of cruelty to children. The warrant was issued for violation of probation. In determining that the Veteran is a fugitive felon, the RO determined that the Veteran violated a condition of probation imposed for commission of a felony under state law. There is no evidence that the probation was imposed for commission of a misdemeanor. The Veteran and his counsel have not alleged that the Veteran was convicted of misdemeanor cruelty to children. Therefore, the evidence persuasively shows the warrant was for a violation of probation imposed for commission of a felony under state law. The Board notes that the first warrant was issued on September 27, 2007, and that a second warrant was issued on September 3, 2014. On August 22, 2019, the September 27, 2007, warrant was dismissed by a judge. There is no evidence that the dismissal did not also apply to the September 3, 2014, since the second warrant also pertained to a probation violation. Thus, the Veteran's warrant was cleared on August 22, 2019. In light of above, the evidence persuasively shows that the Veteran was a fugative felon from September 3, 2014, to August 21, 2019. Hence, the Veteran was not entitled to receive VA compensation benefits from September 3, 2014, to August 21, 2019. The claim of restoration of VA compensation benefits that were terminated effective from September 3, 2014, to August 21, 2019, due to fugitive felon status is denied. Nonetheless, the evidence persuasively shows that the Veteran has not been a fugative felon since August 22, 2019, the date the warrant was cleared. As such, the Veteran is entitled to receive VA compensation benefits since August 22, 2019. The claim of restoration of VA compensation benefits that have been terminated since August 22, 2019, due to fugitive felon status is granted. REASONS FOR REMAND In March 2009, the RO received the Veteran's service treatment records. In August 2013, the RO received the Veteran's service personnel records that are on microfilm. The only service treatment records of record are on microfilm and associated with the service personnel records. It appears that the service treatment records received in March 2009 are missing. The RO should attempt to obtain the Veteran's complete service treatment records. The January 1981 pre-induction examination report and report of medical history reflect that the Veteran had a history of a right shoulder injury in July 1980 from playing football. A January 1981 orthopedic consult report reveals that the Veteran had an unknown injury to the right shoulder with no fracture or dislocation. Following physical exam, the Veteran was considered acceptable for service. A right shoulder injury was listed in the notes of the January 1981 pre-induction examination report. The right shoulder was listed in the summary of defects and diagnoses of the January 1981 pre-induction examination report, and the right shoulder was not considered disabling. In April 1981 and October 1981, it was noted on the January 1981 pre-induction report that there were no disqualifying injuries or diseases noted on dates in those respective months. Given that the right shoulder was discussed in the summary of defects and diagnoses, a right shoulder injury was noted on entrance. A VA examination is necessary to determine whether the right shoulder injury was aggravated by service and whether any other right shoulder disability is related to service. An April 2021 SSA inquiry results show that the Veteran's claim for Social Security disability benefits has been denied. The RO should obtain any records from the Social Security Administration pertaining to his claim for disability benefits. The RO should obtain any additional records from the VA Boston Healthcare System and the Bedford VA Medical Center from November 2013 to the present. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his right shoulder disability. Obtain any identified records. Obtain the Veteran's VA treatment records from the VA Boston Healthcare System from November 2013 to the present and from the Bedford VA Medical Center from November 2013 to the present. 2. Obtain the Veteran's complete service treatment records. 3. Obtain the Veteran's federal records from the Social Security Administration pertaining to his claim for disability benefits. Document all requests for information as well as all responses in the claims file. 4. After the directives in 1 through 3 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the right shoulder disability. The examiner must opine whether it is at least as likely as not that the right shoulder injury noted on the January 1981 pre-induction examination report underwent an increase in severity during active duty. If it is at least as likely as not that the right shoulder injury noted on the January 1981 pre-induction examination report underwent an increase in severity during active duty, the examiner should opine on whether it is clearly and unmistakably (undebatably) that the increase in severity during service was due to the natural progress of the right shoulder injury. For every current right shoulder disability, the examiner should opine on whether it is at least as likely as not that the right shoulder disability is related to the right shoulder injury noted on the January 1981 pre-induction examination report. If the examiner finds that a current right shoulder disability is not related to the right shoulder injury noted on the January 1981 pre-induction examination report, the examiner should opine on whether it is at least as likely as not that the right shoulder disability is at least as likely as not related to an in-service injury, event, or disease. 5. Thereafter, readjudicate the claim on appeal. If the benefit sought in connection with the claim remains denied, the Veteran and his counsel should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.