Citation Nr: 22016366 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-38 979 DATE: March 22, 2022 ORDER 1. Challenges to the propriety of the creation of an overpayment portion based on the period that ran from the 61st day following the date of the Veteran's entry into the Oregon Department of Corrections' (ODOC) post-conviction custody to the date preceding the effective date of the final action of the Department of Veterans Affairs (VA), Regional Office (RO), are denied. 2. Challenges to the amount of the debt ensuing from the overpayment created as to the period that ran from the 61st day following the date of the Veteran's entry into the ODOC's post-conviction custody to the date preceding the effective date of the RO's final action are denied, and the amount of this debt is recalculated and increased by $45.45, i.e., raised to $6,037.91. 3. The claim for a waiver of the recalculated $6,037.91 debt created based on the period that ran from the 61st day following the date of the Veteran's entry into the ODOC's post-conviction custody to the date preceding the effective date of the RO's final action is denied. REMANDED 4. An inquiry as to the propriety of the charge of an additional overpayment based on the period that ran from the 61st day following the date of the Veteran's placement in pretrial detention to the 60th day following the date of her entry into the ODOC's post-conviction custody, to include the three-day period that ran from the date of the Veteran's July 14, 2017, conviction of her felony offenses to the date preceding the date of her July 17, 2017, placement in the ODOC's post-conviction custody (i.e., July 14, July 15, and July 16, 2017), is remanded. FINDINGS OF FACT 1. The overpayment created as to the period that ran from the 61st day following the date of the Veteran's entry into the ODOC's post-conviction custody to the date preceding the effective date of the RO's final action arose from the Veteran's conviction of felony offences. 2. The Veteran was convicted of her felony offenses on July 14, 2017. 3. The RO proposed to charge and took the final action charging the Veteran with an overpayment as to the period that ran from 61st day following the date of her conviction of felony offenses to the date preceding the date of the RO's final action. 4. The Debt Management Center (DMC) calculated the Veteran's overpayment debt based on the period that ran from the 61st day following the date of the Veteran's entry into her post-conviction confinement to the date preceding the effective date of the RO's final action. 5. The period underlying DMC's calculations was three days shorter than the period underlying the RO's proposal and the final action notices. 6. L.K., a holder of the Veteran's power of attorney as to the Veteran's medical decisions, executed a statement showing that the Veteran was held in pretrial detention since July 2016, i.e., for one year preceding the Veteran's conviction. 7. The RO did not include the period that ran from the 61st day of the Veteran's pretrial detention to the 60th day following the Veteran's conviction of felony offences into its proposal notice and did not charge the Veteran with an overpayment created based on this period. 8. The record is silent as to whether the period that ran from the 61st day of the Veteran's pretrial detention to the 60th day following the Veteran's conviction of felony offences, to include the three-day period that ran from the date of the Veteran's July 14, 2017, conviction of her felony offenses to the date preceding the date of her July 17, 2017, placement in the ODOC's post conviction custody, has been credited against the Veteran's sentence other than the prison term imposed based on the Veteran's conviction of felony offenses. 9. The correct amount of the overpayment charged based on the period that ran from the 61st day following the date of the Veteran's entry into her post-conviction confinement to the date preceding the effective date of the RO's final action exceeds the amount calculated by DMC by $45.45. 10. Waiver of the recalculated $6,037.91 debt ensuing from the overpayment created as to the period that ran from the 61st day following the date of the Veteran's entry into the ODOC's post conviction confinement to the date preceding the effective date of the RO's final action would result in an unjust enrichment, while denial of a waiver would neither result in deprivation of basic life necessities nor place the Veteran in a position markedly different than that of an average prisoner at her correctional facility, and the Veteran undertook her financial obligations other than her overpayment debt to VA upon being aware that the Veteran's conviction of felony offenses would result in a downward adjustment of the amount of her monthly VA benefits. CONCLUSIONS OF LAW 1. The overpayment arising from the Veteran's receipt of unadjusted VA compensation benefits during the period that ran from the 61st day following the date of the Veteran's entry into the ODOC's post-conviction confinement to the date preceding the effective date of the RO's final action was properly created. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. 2. The amount of debt charged based on the period that ran from the 61st day following the date of the Veteran's entry into the ODOC's post-conviction confinement to the date preceding the effective date of the RO's final action is $6,037.91 and exceeds the amount charged by DMC by $45.45. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. 3. A waiver of recoupment of the recalculated $6,037.91 debt is contrary to the principles of equity and good conscience. 38 U.S.C. §§ 5302, 5313B; 38 C.F.R. §§ 1.962, 1.963, 1.965, 3.665. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Air Force (Air Force) from April 2004 to September 2007, from March 2008 to July 2008, and from November 2008 to March 2014. Being service connected for disabilities having a combined rating of 90 percent and, in addition, being awarded special monthly compensation (SMC) under 38 U.S.C. § 1114(k), the Veteran has been in receipt of VA disability compensation benefits effective March 2004. These matters are before the Board of Veterans' Appeals (Board) on her challenges to the RO's January 2018 final action notice and the resulting DMC demand letter issued later in January 2018. Further, the statements sent by or on behalf of the Veteran to U.S. Senator Jeff Merkley indicated the Veteran's impression that her appeal included challenges to the December 2019 Committee on Waivers and Compromises (COWC) decision that denied the Veteran a waiver of her overpayment debt. Notably, the Veteran filed her Notice of Disagreement (NOD) in March 2018, that is, two months after the issuance of the RO's January 2018 final action notice and DMC's January 2018 demand letter, but more than a year and a half prior to the issuance of COWC's decision. Moreover, the RO's November 2019 Statement of the Case (SOC) addressed only the Veteran's challenges to the RO's final action that created the overpayment, without addressing her challenges to the overpayment amount. Indeed, the SOC could not address the Veteran's challenges to COWC's denial of a waiver of her overpayment debt since, at the time when the SOC was issued, no COWC's decision was in existence. Given that, in December 2019, the Veteran filed VA Form 9, Appeal to the Board, seeking the Board's review of "all issues" addressed in the SOC, the only line of challenges properly on appeal is that as to the propriety of the creation of the Veteran's overpayment. However, the Board acknowledges that a challenge to a debt arising from VA overpayment may, albeit not must, encompass three claims, i.e., a challenge to the creation of the overpayment, a challenge to the amount of the overpayment, and the claim for a waiver of the overpayment debt. See Johnson v. Wilkie, No. 19 5789, 2020 U.S. App. Vet. Claims LEXIS 1205, at *5 (Vet. App. June 25, 2020) (mem. dec.); see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge memorandum decisions may be relied upon for any reasoning they contain). Moreover, the Board is mindful that the Veteran's lay statement submitted with her NOD unambiguously demonstrated her desire to raise all three claims. In addition, the Board acknowledges that the Veteran's VA Form 9 requested a Board hearing, but no VA notification was provided to the Veteran to inform her that she was not entitled to a Board hearing on the ground that she had not raised a waiver claim, even though, for the purposes of VA overpayment challenges, the right to a Board hearing extends only to waiver claims, while any challenges to the propriety of the creation of an overpayment or validity of its amount are resolved on the record. 38 C.F.R. § 1.911(c)(2). Simply put, it appears that the Veteran was led to believe that all three of her claims were on appeal. Therefore, while the Board is mindful of multiple procedural shortcomings of the Veteran's appeal, the Board finds it is warranted to address all her claims since for the purposes of vesting the Board with appellate jurisdiction, her NOD qualified as a sufficient instrument, allowing the Board to overlook procedural errors. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009). In conjunction with the foregoing, the Board also notes that, in September 2021, the Veteran withdrew her request for a hearing, albeit only after filing statements repeatedly expressing her displeasure with not having a Board hearing arranged for her pursuant to her VA Form 9 request. The Board, thus, takes this opportunity to point out that, since the Veteran requested a videoconference Board hearing, during which the Veteran would be present at the RO, the Board was without legal means to make arrangements for such a hearing. This was so because the Veteran has been and still is incarcerated, serving her term of imprisonment imposed based on her conviction of violent criminal offenses. Hence, even if the Board were to factor out that no RO is equipped to provide the proper level of security to an incarcerated inmate and/or to the staff of the RO (who would be placed in the presence of such an inmate and would, thus, require protection), the Board is without authority to generate or procure a legal instrument causing the Veteran's release from her correctional facility and her production at the RO. Indeed, an incarcerated individual could be released from his/her correctional facility for the purposes of his/her legal proceeding only based on a writ of habeas corpus ad prosequendum or a similar legal instrument issued by a court having geographic jurisdiction over the warden of the correctional facility. The Board, being a quasi-judicial entity, lacks the authority to issue such a writ. Moreover, the Board's application for such a writ from the U.S. Court of Appeals for Veterans Claims (CAVC) or a State court, or a Federal court other than CAVC would necessarily be futile. This is so because any court that issues such a writ is prohibited from obtaining an inmate's release for the purposes of de facto lending the inmate to the RO or any entity other than the issuing court. Rather, a writ could be issued only for the purposes of the so-released inmate's legal proceeding held by the court that issued such a writ. Therefore, since the Veteran requested a Board hearing, during which she would be present at the RO, no such hearing could have been arranged for by the Board. The Board takes this opportunity to express its regret that these matters were not clarified to the Veteran at an earlier date. Having sorted these matters out, the Board also notes two other ambiguities reflected in the record. First, the record demonstrates that, on July 14, 2017, the Veteran was convicted by an Oregon state court of three felonious offenses, including manslaughter in the first degree. The online information provided to the RO by the ODOC indicated that the Veteran's "earliest date of release" would be in January 2042. However, the ODOC's information did not clarify whether such a January 2042 date would be the earliest date when the Veteran could be released on parole under her determined sentence, i.e., a sentence expressed in a fixed number of months, or if the January 2042 date reflected the minimum term of imprisonment imposed upon the Veteran as part of her indeterminate sentence, i.e., a range sentence stating the minimum and maximum terms of imprisonment. Since rules of calculating a parole eligibility date markedly differ as to determined and indeterminate sentences, the Board is presently not in a position to ascertain the Veteran's projected date of release on parole with any degree of certainty. However, this ambiguity appears immaterial for the purposes of the analysis at hand. Indeed, while the Board is mindful of the financial challenges commonly faced by incarcerated individuals upon their release from confinement and finds such considerations highly relevant to certain elements of the waiver analysis, these considerations appear inapposite to the case at bar because, regardless of how the Veteran's parole eligibility date could be calculated, the January 2042 date noted by ODOC shows that her parole is unlikely to take place in the near future. The other ambiguity is considerably more concerning and requires a clarification as to the governing legal authority. Under 38 U.S.C. § 5313 and 38 C.F.R. § 3.665, during her incarceration period, the Veteran has been entitled to receipt of her VA disability compensation benefits, but only in the amount equal to that payable to a VA beneficiary having a service-connected disability rated at 10 percent. Hence, while the combined rating of the Veteran's service-connected disabilities remained at 90 percent, and her SMC award was never revoked, the amount of the Veteran's compensation benefits disbursed monthly by VA had to be downwardly adjusted due to her confinement ensuing from her felony convictions. Under 38 U.S.C. § 5313(a)(1) and 38 C.F.R. § 3.665(a), such an adjustment was required during the period running from the 61st day of the Veteran's incarceration "for," rather than "following," her felony convictions to the date of the Veteran's release from confinement or her placement in a halfway house or in a mental institution. Relevant here, for VA overpayment purposes, a period of incarceration "for" a conviction might but not must substantially differ, quantitatively, from a period of incarceration that "follows" a conviction. This is so because, if a criminal defendant is not released on bail prior to his/her trial (meaning that (s)he is placed in pretrial detention, e.g., a municipal or county jail), then the department of corrections that assumes custody over him/her after the defendant's conviction and sentencing to incarceration, i.e., to a term of imprisonment that would be served at a State's prison, is required to credit the imposed incarceration period with the period that (s)he has already spent in pretrial detention, i.e., in the jail or a similar pretrial-detention facility. Indeed, had it been otherwise, a convicted prisoner would end up serving a period of incarceration longer than the term of imprisonment imposed upon him/her by the court since the prison term, plus the pretrial-detention jail period, would be longer than his/her penal sentence. In sum, the law prohibits penalizing a prisoner on the grounds that (s)he was denied release on bail or had no financial means to post bail. See, e.g., United States v. Wilson, 503 U.S. 329, 334-35 (1992); Nieves v. Scism, No. 12-3498, 2013 U.S. App. LEXIS 10989, at *3 (3d Cir. 2013) (citing 18 U.S.C. § 3585 to provide a Federal law example of the same principle). Upon an application of such a credit, the period of pretrial detention converts into a portion of the period of incarceration imposed "for" conviction and in light of 38 U.S.C. § 5313 and 38 C.F.R. § 3.665 careful usage of the word "for" instead of the word "following" the credited period becomes subject to the statute and the regulation. Accordingly, as a general matter, the credited period should give rise to an overpayment. Indeed, had it been otherwise, a criminal defendant who spent a period exceeding 60 days in pretrial detention would escape the reach of 38 U.S.C. § 5313 and 38 C.F.R. § 3.665 if, being convicted of his/her felonies, (s)he is sentenced to either the time served or a period exceeding his/her pretrial detention by 60 days or less: since, if his/her pretrial detention is credited against the sentence, such a convicted prisoner would not be charged with an overpayment. Because it would be anomalous to charge an overpayment to a prisoner who was granted and/or could post bail, but not charge an overpayment to an identically convicted and sentenced prisoner who could not post bail (or was denied bail, which is common for criminal defendants charged with very serious offences or presenting a high risk of flight), the word "for" used in both 38 U.S.C. § 5313 and 38 C.F.R. § 3.665 demonstrates that the overpayment rules were meant to be equally applicable to the period of incarceration that starts to run after a conviction (e.g., in a scenario where a criminal defendant was released on bail and, thus, had his/her bail revoked upon his/her criminal conviction) and to the pretrial detention period that has been credited following the conviction of a defendant who was held in pretrial detention because (s)he was denied or unable to post bail. Simply put, there is only a 60-day period of detention unaffected by the statute and regulation, regardless of whether the prison term is or is not credited with a pretrial detention. However, the Board is aware that, unlike the drafters of the statute and regulation, many RO officials are unaware of this critical distinction between "following" and "for," and commonly misread the language of 38 U.S.C. § 5313 and 38 C.F.R. § 3.665 as a directive to create an overpayment based only on a period "following" the date of a VA beneficiary's conviction, even if a lengthy pretrial period was credited against a convicted veteran's prison sentence. That said, the Board is also mindful that, while a period of pretrial detention could be credited only once, i.e., against only one sentence, see Wilson, 503 U.S. at 337, a pretrial detention period could be credited against a sentence other than that ensuing from the conviction on charges triggering the pretrial detention at issue. For instance, if a defendant is charged with two different offenses, and one of them is a felony that results in a pretrial detention due to the defendant's inability to post bail (or bail being denied), and another offense, which is a misdemeanor, yields a sentence imposed to run consecutively with the defendant's felony sentence, then the defendant's pretrial detention period served in connection with his/her felony charges could be credited against such a consecutive misdemeanor sentence. The Board also acknowledges that a VA compensation beneficiary does not have the amount of his/her VA benefits downwardly adjusted based on an incarceration resulting from a misdemeanor conviction. Accordingly, the Board cannot rule out that, here, the Veteran's period of pretrial detention served in connection with her felony charges might have been credited against her misdemeanor sentence, that is, if such a misdemeanor sentence was in existence and was imposed to run consecutively to the Veteran's sentence imposed based on her felony offenses. In such a scenario, the ODOC's credit for her pretrial detention would not require a downward adjustment of the amount of the Veteran's VA benefits for the period from the 61st day of her pretrial detention to the 60th day of her post-conviction confinement. However, given that the record is silent as to any misdemeanor conviction or a consecutive misdemeanor sentence, the Board cannot also rule out an error on the part of the RO, that is, if the Veteran's pretrial detention period was credited against her prison term ensuing from her felony convictions. Accordingly, the Board addresses this aspect in the Remand section of this Order. Having made these clarifications, the Board now turns to the underlying facts and legal authority implicated by the Veteran's claims, and to the specific challenges that she has raised. Relevant here, the purpose of the downward adjustment required by § 5313, i.e., the statute that enabled VA's promulgation of § 3.665, was expressed by . . . Congress [as a measure needed] to address the . . . problem of providing government benefits to individuals who were already being provided for by taxpayer funding of penal institutions. 126 Cong. Rec. 26,118 (1980) (statement of Rep. G.V. Montgomery) ("I do not see the wisdom of providing hundreds and thousands of dollars of tax-free benefits to such individuals when at the same time the taxpayers of this country are spending additional thousands of dollars to maintain these same individuals in penal institutions"); 126 Cong. Rec. 26,122 (1980) (statement of Rep. Chalmers Wylie) ("In the case of imprisonment, when a prisoner is being fully supported by tax dollars that fund the penal institution, it becomes ludicrous to continue payment of benefits designed to help him maintain a standard of living"); see also Wanless v. Shinseki, 618 F.3d 1333, 1337 (Fed. Cir. 2010). Philbrook v. McDonough, No. 2020-2233, 2021 U.S. App. LEXIS 30265 at *3-4 (Fed. Cir. Oct. 8, 2021). Therefore, in October 2017, the RO issued the Veteran a proposal notice informing her that, in September 2017, an entity unrelated to the Veteran had notified the RO of her July 2017 conviction of felony offenses that yielded a term of imprisonment in excess of 60 days. Correspondingly, the RO proposed to downwardly adjust the amount of the Veteran's benefits under 38 U.S.C. § 5313 and 38 C.F.R. § 3.665. The RO stated that the adjustment would be retroactively effective from the 61st day "following" the Veteran's conviction and could result in the RO's finding that the Veteran was overpaid, hence triggering VA's obligation to recoup the resulting overpayment debt. Upon so stating, the RO provided the Veteran with an opportunity to respond to the RO's October 2017 proposal, e.g., by evidence showing that she was not convicted, or was convicted of a misdemeanor offense, or was convicted on a different date, or was imposed a probationary sentence, etc. The record shows that the Veteran elected not to respond. In January 2018, upon construing the Veteran's election not to respond as her confirmation of the date and nature of her conviction stated in the October 2017 proposal notice, the RO issued the Veteran the final action notice informing her that the RO took action proposed in October 2017, that the final action was effective January 1, 2018, and that it had caused the Veteran's VA compensation benefits to be retroactively adjusted. The RO also notified the Veteran that DMC would soon inform her of DMC's calculation of the amount of the overpayment debt charged to the Veteran. Later in January 2018, DMC issued the Veteran a demand letter informing her that her overpayment debt was calculated by DMC yielding the amount of $5,992.40. However, as COWC's December 2019 decision demonstrates, DMC's calculation was not based on the period stated in the RO's proposal and final action notices. While the RO referred to the period that began to run on the 61st day following the Veteran's conviction, DMC elected to qualify the date when the ODOC took the Veteran's into its post-conviction custody as the first day of the Veteran's overpayment, even though there were three days between the date of her conviction and the date when the ODOC took her in post-conviction custody. In March 2018, the RO received a letter from L.K. indicating that for reasons not immediately apparent to the Board L.K. elected to act as the Veteran's fiduciary for litigation purposes, even though the record is silent as to a finding by a court or VA that the Veteran was deemed incompetent, and that L.K. was appointed to act as her legal fiduciary. (A later communication from the Veteran indicated that she had executed a power of attorney in favor of L.K. for the purposes limited to the Veteran's medical decisions.) Therefore, the Board treats any statement executed by L.K. as a third party's lay statement, crediting her accounts of events as to which L.K. actually had or could have reasonably had first-hand knowledge. L.K.'s letter demonstrated her first-hand knowledge that the Veteran had been held in pretrial detention since July 2016, i.e., during the year that preceded her felony convictions. L.K. also stated that she had met with a certain senior Veterans Health Administration (VHA) official to complain about termination of the Veteran's previously prescribed medical treatment while the Veteran had been held in pretrial detention, and that L.K. shared the content of that meeting with the Veteran. Later in March 2018, the Veteran filed her NOD challenging the RO's final action and accompanied it with a lay statement. The Veteran's lay-statement allegations could be subdivided into three broad categories. As to the Veteran's challenges to the propriety of the creation of her overpayment, she opined that the overpayment was improperly created and resulted solely from VA's administrative error since: (a) L.K. communicated to the VHA official the fact that the Veteran was in pretrial detention, which caused the Veteran to believe that her VA compensation benefits would be downwardly adjusted by the RO at an appropriate point in time based on L.K.'s notice since (b) the Veteran developed an impression that, due to L.K.'s statement to the VHA official, VA had become obligated to closely monitor all developments in the Veteran's prosecution and downwardly adjust her VA benefits immediately upon the entry of the Veteran's conviction and sentence; and, hence (c) the Veteran perceived the RO's acts of issuing a proposal notice and waiting for her response as an undue procrastination. The Veteran also opined that the RO's procrastination was particularly egregious because the RO even after being notified in September 2017 by an entity unrelated to the Veteran of her conviction and sentence still proceeded with issuing the proposal notice and then waited two months to take the final action, instead of doing so in September 2017. As to the Veteran's challenges to the validity of the amount of her overpayment, the Veteran's lay statement asserted that the beginning date of the underlying period was improperly selected because each VA payment reflected an entitlement accrued during the month at the end of which the payment was executed. With that, the Veteran stated her belief that the amount of her debt should have been $5,217 because, in the Veteran's opinion, DMC erred by not "deduct[ing] the 10% disability" from VA's payment disbursed to the Veteran on September 29, 2017. Further, the Veteran expressed her displeasure with the incremental recoupment plan implemented by DMC: because DMC was making monthly withholdings toward recoupment of the Veteran's overpayment debt in the amount of $136.24, while the Veteran preferred $25 monthly withholdings, since she perceived her obligations to her creditors other than VA as more important. Elaborating on these other obligations, the Veteran's asserted that her penal sentence (imposed based on her commission of felony offenses) included court fees and fines, and she executed an agreement to pay these fees and fines during her post-conviction incarceration. (The Board notes that, while no such agreement is of record, the Board conducts its analysis upon assuming, arguendo, that such an agreement was executed.) In addition, the Veteran asserted that she had not been provided with required medical and dental care, or with medications prescribed to her prior to her pretrial detention, or with prescription eyeglasses. The Veteran clarified that these deprivations began to occur during her pretrial detention and continued to take place during her post-conviction incarceration. Therefore, the Veteran asserted that she had to incur debts due to having to obtain medical and dental care, medications, and eyeglasses by borrowing funds (without specifying whether these funds were obtained through use of commercial or private lenders), and that she had to purchase clothes. In sync, the Veteran asserted that she was required to continue making payments for a vehicle that had been seized by the State of Oregon in connection with her prosecution and opined that the forfeiture was illegal. The Board addresses the Veteran's allegations seriatim. For a determination that an overpayment was improperly created, a claimant must establish that (s)he was legally entitled to the benefits at issue. If not, (s)he must show that VA committed a so-called sole administrative error. Notably, the phrase "sole administrative error" is a legal term of art having a meaning different from a layperson's perception of a clerical error made by an administrative official. VAOPGCPREC 2-90 (July 17, 1989); see also 55 Fed. Reg. 27757 (1990). Since, here, the record is not in dispute that the Veteran was not legally entitled to receipt of the full amount of her VA benefits during the period on appeal, i.e., the period that ran from the 61st day following the date of her placement in the ODOC's post conviction custody to the date preceding the date of the RO's final action, the Board's analysis focuses on the sole administrative error. The inquiry is two pronged, and both requirements should be met to establish such an error. On the one hand, to establish that the overpayment was created as a result of such an error, a claimant is required to show that his/her actions or failure to act did not cause or even contribute to the claimant's receipt of the benefit at issue. Here, the Veteran does not assert that she (or any other entity acting on the Veteran's behalf) notified VA of her conviction or sentence. Rather, the Veteran maintains that VA was obligated to monitor the developments of her prosecution to determine when the Veteran would be convicted and how she would be sentenced because L.K. had mentioned the Veteran's pretrial detention to the VHA official. The Veteran errs. The VHA official notified by L.K. could not act as a person authorized to take notice for purposes related to a change in the amount of the Veteran's VA benefits. This was so because such a notice could be taken only by an entity with delegated authority to accept a notice of a change in entitlement to compensation benefits. Such an entity is the Veterans Benefits Administration (VBA), that acts through its authorized staff, not VHA or a VHA official. See 38 C.F.R. § 3.217 (statements as to a change in entitlement to compensation benefits may be submitted in writing or orally only to VBA employees authorized to identify themselves as such and to record the oral evidence in a particular manner); see also 38 C.F.R. § 3.100. Therefore, L.K.'s statement to a member of any VHA official, be it a senior officer, a physician, a nurse, or a clerical officer, cannot meet the notice requirement. The Board is mindful that the Veteran failed to appreciate the difference between VBA and VHA, and she relied on L.K.'s false assurances that VHA and VBA were de facto interchangeable. Therefore, the Board takes this opportunity to point out that, while VBA and VHA are both agencies within VA, giving notice to VHA instead of VBA is akin to giving notice to a U.S. Army member about a matter concerning the Air Force simply because these agencies fall within the umbrella jurisdiction of the U.S. Department of Defense. Accordingly, the Board notes its concern with L.K.'s election to act as the Veteran's de facto legal counsel without having proper credentials or authorization: since it appears that L.K.'s election caused the Veteran to unduly rely on L.K.'s quasi-legal opinion that was without any basis in law. Further, even if the Board were to factor out the §§ 3.100 and 3.217 requirements, the Veteran's position is still without merit. This is so because VA was not required to "monitor" the Veteran's criminal proceedings for the purposes of determining whether she was convicted or acquitted, or whether at least one of her felony charges stated in the indictment yielded a guilty verdict, or whether her sentence was for an incarceration period in excess of 60 days, etc. The notice obligation was entirely that of the Veteran, and the "preemptive" notice provided by L.K. was insufficient: since L.K. effectively invited VA to presume that the Veteran would be convicted, which VA could not legally do. Thus, L.K.'s "preemptive" notice could not trigger VA's obligation to "monitor" the Veteran's criminal proceedings. Indeed, had VA begun monitoring every legal development in the lives of all VA beneficiaries, VA would have to dedicate inordinate human and financial resources to such an endeavor, doing so without a congressional allocation for such actions. Moreover, such a "monitoring" would necessarily raise a host of privacy concerns. Since, here, the record is not in dispute that the notice of the Veteran's conviction of felony offenses that yielded a term of imprisonment in excess of 60 days came to VA in September 2017, i.e., two months after the Veteran's conviction, and it came from an entity unrelated to the Veteran, the record shows that the Veteran's failure to act caused or at least contributed to the creation of her overpayment. Accordingly, the first prong of the sole-administrative-error inquiry counsels against the Veteran. Given that the Veteran is required to meet both prongs of the inquiry to establish such an error on the part of VA, the Veteran's challenges to the creation of her overpayment should be denied without more. However, mindful of the Veteran's confusion, the Board does not stop its analysis here and finds it warranted to also address the second prong of the inquiry. The second prong requires a showing that the debtor neither knew nor should have known that the benefits at issue were disbursed in error. 38 U.S.C. § 5112(b)(9), (10); 38 C.F.R. § 3.500(b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997). Here, the Veteran's lay statement expressly acknowledged that the Veteran was expecting the RO to "monitor" her prosecution for the purposes of downwardly adjusting her VA benefits upon her conviction. Therefore, the Veteran conceded her knowledge that the amount of her VA benefits should have decreased due to her conviction of felony offenses. Given that the Veteran continued receiving and making use of her unadjusted VA benefits, the record demonstrates that she knew that the full amount of her VA benefits was disbursed in error but neither declined acceptance nor took any corrective action. Hence, the second prong of the sole-administrative-error inquiry is also not met. Finally, the Board acknowledges the Veteran's somewhat related contention that at least a portion of the Veteran's overpayment was improperly created because the Veteran was of opinion that the RO procrastinated with taking its final action after being notified of the Veteran's felony conviction in September 2017: since the RO first issued her a proposal notice in October 2017, and then took final action only effective January 1, 2018. Again, the Veteran errs. The Fourteenth Amendment's procedural-due-process guarantees (applicable to VA through the Fifth Amendment, since VA is a Federal agency) obligate the RO to provide a potential debtor with a proposal notice and a meaningful opportunity to respond (especially if the proposed debtor is incarcerated, and his/her hard-copy mail from his/her place of confinement might take extra time to be delivered). Had the RO not taken these actions, the Veteran's overpayment charge would be facially deficient procedurally: based on a violation of her due process rights, even though it appears that the Veteran would have preferred such a violation. Since the RO was informed of the Veteran's conviction and sentence in September 2017, sent her a proposal notice next month, i.e., in October 2017, gave her two months i.e., November and December 2017 to respond, and took its final action effective January 1, 2018, the record shows that the RO acted with exemplary efficiency and care. Therefore, no matter how the Board were to slice it, the Veteran's challenges to the propriety of the creation of her overpayment at bar are denied as meritless. The Board now turns to the Veteran's challenges to the validity of the amount of her overpayment debt calculated based on the period that ran from the 61st day following her entry into the ODOC's post-conviction custody to the date preceding the effective date of the RO's final action. This category of challenges could roughly be subdivided into three groups. First, the Veteran is displeased with the incremental recoupment plan instituted by DMC because she prefers a recoupment plan under which DMC would withhold only $25 per month: since such a low recoupment amount would allow her to prioritize the Veteran's other financial obligations, i.e., payments of her court fees and fines, payments for her vehicle, and payments of debts incurred as a result of her purchases of medical and dental care, medications, and eyeglasses in pretrial detention and post-conviction incarceration. However, while the Veteran prefers to perceive her obligations to VA as subordinate to her other indebtednesses, the Veteran's financial obligations to VA are as legally valid as all her obligations to other creditors. Further, the Veteran's debt to VA cannot be subject to the rules of debt subrogation. This is so because the Veteran's forthcoming payments of VA benefits cannot be deemed a property upon which either the credit union that refinanced her vehicle, or the court that conducted her prosecution and imposed her sentence, or her other lenders, could have placed a lien to obtain a priority of debt. Moreover, the Veteran has no right to require that DMC would lower the amount of its incremental monthly withholdings, although the Veteran may negotiate this aspect with DMC. While the Board acknowledges the Veteran's displeasure with the outcome of her negotiations with DMC (and the Board is aware that the mode of DMC's negotiations, alas, often leaves a debtor with an impression that DMC's position is more akin to an ultimatum than to an offer to negotiate), the Board is without jurisdiction to adjudicate the Veteran's challenges to the outcome of her negotiations. This is so because such an outcome qualifies as a compromise (since, indeed, VA could have also sought recoupment of the Veteran's debt from sources other than VA benefits, e.g., VA could have seized her tax returns or liquid assets, i.e., the Veteran's bank accounts, her private and investment property, and her real estate, if any, and apply these funds toward recoupment), and the Board lacks jurisdiction over DMC's compromises. VAOPGCPREC 4-2003 (Aug. 28, 2003). Therefore, this group of the Veteran's challenges is dismissed for lack of Board jurisdiction with a brief clarification that DMC is statutorily obligated to act as a collection agent for VA and, therefore, to collect all debts "aggressively." 38 C.F.R. § 1.910. In other word, had DMC been recouping the Veteran's debt by withholdings of $25 per month, as the Veteran prefers, it would have taken DMC 241.52 months ($6,037.91 / $25), i.e., 20 years and five weeks to recoup her debt. Thus, DMC would be violating its obligations as a VA's collection agent had DMC been able to withhold $136.24 per month from the Veteran but, instead, would be withholding only $25: since such a recoupment would not qualify as "aggressive." The second group of the Veteran's challenges is based on the fact that VA benefits are, as a general matter, disbursed on or about the last day of the month during which these benefits have accrued. These challenges are inapposite to the inquiry at bar. The period underlying the calculation of an overpayment to an incarcerated VA disability compensation beneficiary is calculated based on the number of days that expire from the 61st day of incarceration "for" a felony conviction that yielded a sentence in excess of 60 days to the effective date of the final action downwardly adjusting the amount of his/her monthly VA benefits under 38 U.S.C. § 5313 and 38 C.F.R. § 3.665. The amount of the days in such a period affects the calculation, but the actual dates of payments that created the overpayment are irrelevant. Thus, this group of the Veteran's challenges is dismissed for failure to state a claim. The Veteran's third and the most cryptic group of challenges is summarized by her contention that DMC should have reached the final overpayment amount of $5,217. In support, the Veteran asserted that DMC erred by failing to "deduct the 10% disability" from VA's payment disbursed on September 29, 2017. Both the legal and mathematical logic of the Veteran's statement escape the Board. Since the record shows that the Veteran was convicted of her felony offenses on July 14, 2017, the 61st day of incarceration following her date of conviction had to be September 13, 2017. And, since there are 30 days in September, the first 12 days of the Veteran's receipt of her VA benefits in September 2017 fell outside the period following the 60th day of her conviction, while the remaining 18 days fell within this period and became subject to 38 U.S.C. § 5313 and 38 C.F.R. § 3.665, given that the Veteran remained in receipt of her unadjusted VA benefits to December 31, 2017. Therefore, as to September 2017, DMC was required to: (a) determine the amount disbursed to the Veteran for a 90 percent rating, plus her SMC, for 18 days during this month; then (b) determine the amount payable in September 2017 for a 10 percent rating for the same 18 days; and then (c) deduct the amount "(b)" from the amount "(a)." VA's disability compensation tables demonstrate that, from December 1, 2016, to November 30, 2017, compensation for a 90 percent combined disability rating was $1,748.71. However, with the type of the SMC payable to the Veteran, her total monthly compensation was higher, i.e., $1,852.25. Notably, during the December 1, 2016, to November 30, 2017, period, the amount of compensation payable for a 10 percent rating was $133.57. Thus, a monthly difference between the amount payable for a 10 percent rating and the amount disbursed on a monthly basis to the Veteran during this December 1, 2016, to November 30, 2017, period was $1,718.68 ($1,852.25 $133.57). Since there are 12 months in each year, and 2017 was not a leap year (i.e., there were 365 days in 2017), the amount of the Veteran's daily overpayment during the December 1, 2016, to November 30, 2017, period was $56.50 ($1,718.68 x 12 / 365), that is, as to every day affected by 38 U.S.C. § 5313 and 38 C.F.R. § 3.665. Hence, during those 18 days of September 2017 that were part of the period that ran from the 61st day following the date of the Veteran's conviction to the date preceding the date of the RO's final action, the Veteran was overpaid $1,017 ($56.50 x 18). The amount of the Veteran's overpayment in October 2017 was $1,718.68 ($1,852.25 $133.57), and it was the same in November 2017. Then, when VA rates were increased in December 2017, the Veteran's VA compensation for her 90 percent combined rating, plus SMC, increased to $1,889.29, while the amount payable for a 10 percent rating became $136.24. Thus, in December 2017, the Veteran was overpaid $1,753.05 ($1,889.29 $136.24). It follows that the total amount of the Veteran's overpayment accrued during the period that ran from the 61st day following the date of her conviction of felony offenses to the date preceding the effective date of the RO's final action was $6,207.41 ($1,017 + $1,718.68 x 2 + $1,753.05). Since DMC calculated the amount of the Veteran's debt as $5,992.46, DMC undercharged her by $214.95 ($5,992.46 $6,207.41). In the event a VA debtor elects to challenge an overpayment charged to him/her, such an appeal implicates not only a possible benefit of having the overpayment nullified or reduced, but also a possible risk of a corrective action adversely affecting the debtor. For instance, in Majeed v. Principi, 16 Vet. App. 421 (2002), a veteran appealed an RO's calculation of his overpayment debt. Since his appeal caused the Board to examine the veteran's debt, the Board's review caused an increase in the amount of his overpayment because the RO's and DMC's determinations were erroneous but more favorable to the veteran than the reality. The veteran appealed. The CAVC acknowledged a concern that such an unfavorable outcome might be perceived as inconsistent with the paternalistic nature of VA benefits system. However, the CAVC concluded that the debtor in Majeed had clearly put the issue of the amount of his overpayment into consideration, i.e. he had appealed at his own risk. Majeed v. Nicholson, 19 Vet. App. 525, 531 (2006). Therefore, the CAVC's guidance in Majeed governs the Board analysis here, and the Veteran should now be charged with an additional overpayment in the amount of $214.95. However, the Board acknowledges its awareness that the overpayment period used by DMC differed from the period referred to in the RO's proposal notice and final action notice (and the Board used the RO's overpayment period in its calculations detailed supra). Indeed, while the RO deemed the date of the Veteran's conviction to be the first day for the purposes of determining the 61st day following her conviction (and the RO meant that this 61st day would be the first day of the Veteran's overpayment period), DMC deemed the date of the Veteran's placement into the ODOC's post-conviction confinement to be the first day for the purposes of determining the 61st day following her placement in post conviction confinement (and DMC meant of this 61st day to be the first day of the Veteran's overpayment period). In sum, since DMC elected not to factor in July 14, July 15, and July 16, 2017, i.e., the three days between the Veteran's conviction and her placement in the ODOC's post-conviction custody into its calculations, DMC's overpayment period ended up being three days shorter than the overpayment period charged to the Veteran by the RO (and used by the Board). The rationale for DMC's election is not immediately apparent to the Board. Indeed, it was reasonable for the ODOC to take the Veteran in its post-conviction custody three days after her conviction, given that the ODOC was required to make arrangement for housing the Veteran at her current correctional facility and also arrange for her secure transportation from the jail where she had been held during her pretrial detention. However, unless the Veteran was released from confinement during the three days between her conviction of felony offences and the ODOC taking her into its post conviction custody, it was unreasonable of DMC to exclude these three days. Indeed, it would have been extremely unusual for the court presiding over the Veteran's criminal proceedings to release her from confinement after her conviction, especially if she had been held in pretrial detention before conviction and convicted of manslaughter in the first degree. However, the Board is mindful of the U.S. Supreme Court's guidance that events might be "'strange, but true; for truth is always strange, [s]tranger than fiction.'" Denton v. Hernandez, 504 U.S. 25, 33 (1992) (quoting Lord Byron, Don Juan, canto XIV, stanza 101 (T. Steffan, E. Steffan, & W. Pratt eds. 1977)). Therefore, out of an abundance of caution, the Board adjudicates, at this juncture, only the Veteran's challenges addressing the overpayment created during the period utilized by DMC, i.e., the period that ran from the 61st day following the date of her placement in the ODOC's post-conviction confinement to the date preceding the effective date of the RO's final action. The Board addresses the matters of potential additional overpayments in the Remand section of this Order. Since the period underlying DMC's calculations is three days shorter than the period that was stated in the RO's proposal notice and final action, i.e., the period underlying the Board's above-calculated amount of $6,207.41, and these three days took place in September 2017, it follows that to determine the correct amount of overpayment ensuing from the period utilized by DMC, the amount determined by the Board should be reduced by $169.50 ($56.50 x 3). (This is so because, and detailed supra, the daily difference between the amount paid to the Veteran and the amount payable for a 10 percent rating was $56.50 in September 2017.) So reduced, the Board-calculated amount of the Veteran's debt becomes $6,037.91 ($6,207.41 $169.50). Thus, even as to the period utilized by DMC, DMC still undercharged the Veteran by $45.45 ($5,992.46 $6,037.91). It follows that, under the CAVC's guidance provided in Majeed: (a) the Veteran's challenges to the validity of the amount of her overpayment calculated by DMC with regard to the period the period that ran from the 61st day following the date of the Veteran's entry into the ODOC's post-conviction custody to the date preceding the effective date of the RO's final action have to be denied; and, in addition, (b) the Veteran's overpayment at bar has to be increased by $45.45. With that, the Board turns to the Veteran's claim for a waiver of her $6,037.91 recalculated debt at bar. A debt is waived, and there is no recovery of overpayment of VA benefits if it is determined that recovery would be against equity and good conscience. 38 U.S.C. § 5302(a); 38 C.F.R. § 1.962. The "equity and good conscience" standard implies that the facts and circumstances of a case might indicate a need for reasonableness and moderation in the exercise of the Government's rights. That said, the "moderation" concern does not mean that there is an automatic right for at least a partial waiver of an indebtedness; rather the waiver analysis requires an adjudicator to carefully balance all applicable equitable considerations. Such considerations include whether the fault on the part of VA outweighs the fault of the debtor in creating the overpayment (the balance-of-fault element), whether the failure to make restitution would result in unfair gain to the beneficiary (the unjust-enrichment element), whether the beneficiary has changed his/her position for the worse in reliance on the VA benefits to be offset or collected (the reliance element), whether recoupment of the debt would deprive the beneficiary of basic life necessities (the financial-hardship element), whether the recovery would nullify the objective for which benefits were intended (the nullification element), etc. 38 U.S.C. § 5302; 38 C.F.R. § 1.965(a). Two of these elements self-evidently counsel against the Veteran's waiver claim. Indeed, as the foregoing discussion demonstrates, the Veteran's failure to promptly notify the RO of her conviction and sentence in July 2017 caused or predominantly contributed to the creation of the overpayment at bar. Thus, the balance-of-fault element counsels against her waiver claim. In sync, the unjust-enrichment element supports denial of her waiver claim since the record is not in dispute that the Veteran was the person who received and benefitted from the overpaid funds. Compare Shephard v. Shinseki, 26 Vet. App. 159 (2013) (upon a veteran's release from confinement, she testified that her former spouse declared bankruptcy after withdrawing and spending the entire $63,749.21 amount that VA had deposited on their joint bank account, hence leaving the veteran solely with the debt, without any opportunity to have benefit from VA's deposits, even though she repeatedly notified VA that, in confinement, she was unable to remove her former spouse from their joint bank account, and he ignored her requests not to withdraw VA funds). Since the financial-hardship and nullification elements are closely interrelated, the Board finds it warranted to address them jointly. The former looks at whether a recoupment of the beneficiary's VA debt would result in a deprivation of basic life necessities, such as shelter, food, and clothing. Critically, the term "basic" has its literal meaning for the purposes of such an analysis. Thus, a beneficiary's access to food that has nutritional value and does not cause him/her health injuries or forces the beneficiary to violate his/her sincerely held religious beliefs, qualifies as sufficient, even if the beneficiary does not enjoy the taste or prefers other meals. In sync, the concept of "shelter" is limited to protection from elements, as well as injury-inflicting chemicals, neighbors, rodents, insects, lack of light, heat, etc., which means that a beneficiary's displeasure with other properties of his/her living conditions is simply inapposite to the "basic shelter" concept. The same applies to a beneficiary's clothes, which are expected to protect him/her from elements, without exposing him/her to a dermatological injury or causing him/her undue exposure of private parts, etc., but the amount and variety of his/her wardrobe, selection of garment fabrics, their colors and pattern, fit, fashion, etc. fall outside the concept of "basic clothes." Further, while the aspect of medical care is often overlooked in the financial-hardship analysis, the Board is mindful that the Veteran's allegations focus predominantly on this aspect. Accordingly, the Board finds it warranted to examine this line of her allegations with particular care. The nullification element builds on the similar considerations since it looks at whether recoupment of a beneficiary's VA debt would place him/her in conditions markedly different from those that were meant to be remedied by the award of VA benefits. VA disability compensation benefits are awarded to allow a beneficiary who cannot earn sufficient funds due to his/her disability to ensure that his/her living conditions are comparable to living conditions of an average working person residing in his/her community. Notably, the taxpayers' funding of correctional facilities noted by the Federal Circuit in Philbrook, read jointly with the relevant legal authority, is meant to ensure that an incarcerated prisoner is not substantially deprived of his/her basic rights to shelter, food, clothes, and medical care, even if (s)he has no funds on his/her inmate's trust account (also referred to as an inmate's commissary or canteen account, depending on a correctional facility's vernacular). These rights are vested in convicted prisoners under the prohibition against cruel and unusual punishment stated in the Eighth Amendment and, with regard to pretrial detainees, these rights are vested in them by the Due Process Clause of the Fourteenth Amendment (since pretrial detainees have the same rights as civilly committed individuals and, hence, enjoy greater rights than convicted prisoners). See, e.g., Youngberg v. Romeo, 457 U.S. 307, 324 (1982) ("the State [has] a duty to provide adequate food, shelter, clothing, and medical care [as well as] reasonable safety"); Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000) ("pretrial detainees are entitled to at least as much protection as convicted prisoners"); see also Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993) (a claim of deliberate indifference to an inmate's serious medical need by correctional officials does not require a showing of complete failure or refusal to provide medical care since such a claim "could exist in a variety of different circumstances"); White v. Napoleon, 897 F.2d 103, 113 (3d Cir. 1990) (if a prison doctor "interfered with modalities of treatment prescribed by other physicians, including specialists, even though these modalities of treatment had proven satisfactory" then "the doctor deliberately treated [the inmate] with an inappropriate drug for no valid [medical] reason"); accord Planker v. Christie, No. 13-4464, 2015 U.S. Dist. LEXIS 6804 (D.N.J., Jan. 20, 2015) (discussing a prisoner's right to Kosher and Halal food required by his/her sincerely held religious beliefs but no right to organic food); Tormasi v. Hayman, No. 08-4950, 2009 U.S. Dist. LEXIS 84738 (D.N.J. Sep. 9, 2009) (the right to an inmate's eye examination and prescription eyeglasses); Williams v. Monmouth County Sheriff's Med. Dep't of Monmouth County Jail, No. 04-4952, 2005 U.S. Dist. LEXIS 29266 (D.N.J., Nov. 21, 2005) (an inmate is entitled to a dental treatment of his/her serious dental condition but not to his/her choice of the treating practitioner or compliance with the inmate's other preferences). Therefore, if the Veteran was deprived of medical care for her serious medical needs or she was deprived of basic shelter, food, and clothes during her pretrial detention or post-conviction incarceration, the Veteran's remedy for violations of her civil rights arising from her conditions of confinement was to commence a 42 U.S.C. § 1983 civil action seeking damages from her prison officials for the deprivations she had experienced. The Veteran, however, elected not to seek such a remedy. Instead, as demonstrated by her Financial Status Report (FSR), during 2017, she had elected to spend $1,200 on prescription drugs, $3,980.50 on dental care, and $65 on optical care purchased through out-of-pocket expenses of funds that she elected to borrow. However, since the law expressly provided her with the right to medical care, to include dental treatment and prescription drugs and eyeglasses, while she was held in pretrial detention and post-conviction confinement, her election to obtain such medical goods and services by paying out of pocket cannot amount to evidence that she would be deprived of basic life necessities if her debt to VA is recouped. Indeed, the Veteran's constitutional rights to shelter, food, clothes, and medical care would remain the same regardless of whether or not the Veteran's overpayment debt to VA is being recouped and her inmate's trust account balance is zero. Indeed, while the Board is mindful that a correctional facility typically requires a small payment (deducted from an inmate's trust account) for a visit with a medical professional, an inmate who has no funds on his/her inmate's trust account cannot be denied medical care for his/her serious medical need since his/her constitutional rights are not affected by the inmate's indigent status. Moreover, such an inmate could commence his/her § 1983 civil action in forma pauperis, without a prepayment. Therefore, the financial-hardship element also counsels against the Veteran's waiver claim. The nullification element analysis builds on the same facts and law. The Board is mindful the Veteran's 90 percent disability rating would have enabled her to enjoy living conditions comparable to those of an average person at her community had she not been incarcerated. Once the Veteran became incarcerated, the benchmark for the Board's comparison had become the living conditions of an average inmate held at the Veteran's correctional facility. Further, the Veteran's SMC is not relevant here since her SMC was awarded based on the Veteran's anatomical loss of a creative organ. Given that the Veteran is not legally married, the lack of her SMC compensation is inapposite to the Veteran's living conditions in confinement because, even if her correctional facility allows inmates' conjugal visits, such visits are uniformly prohibited by all correctional facilities to inmates who are visited by persons other than their legal spouses. Therefore, the Board's comparison of the Veteran's living conditions to those of an average inmate factors out her potential inability to enjoy activities implicating her use of a creative organ. The Board also acknowledges the Veteran's allegation that she cannot perform any compensable work tasks at her correctional facility. Solely out of an abundance of caution, the Board presumes, arguendo and without making a factual finding to, that the Veteran's allegation is true, even though inmates not held at a medical facility are, generally, required to work and could be subjected to administrative segregation for their refusal to work, see, e.g., https://www.bop.gov/resources/ research_projects/published_reports/edu_training/oreprprep_cmq.pdf, and here no evidence of record suggests that the Veteran has ever been housed at a medical facility or a segregated housing unit (SHU). The Board is further mindful that, depending on the tasks performed by an inmate, his/her compensation varies. In Oregon, in 2017, such compensation varied from five to 47 cents per hour, and inmates work on an average six and a half hours per day, 22 days per month, thus making between $7.15 ($0.05 x 22 x 6.5) to $67.21 ($0.47 x 22 x 6.5) a month. https://www.prisonpolicy.org/blog/2017/04/10/wages/. However, since only one third of inmates made the higher range of compensation, while the remaining two-thirds of inmates made the lower range of compensation, see https://www.prisonpolicy.org/blog/2017/04/10/wages/, and the correctional facility where the Veteran is being held was created for 1,684 inmates, it appears that the average monthly inmate's wages at her facility are about $27.17 ((1,684 / 3 x 2 x $7.15 + 1,684 / 3 x $67.21) / 1,684). The Board also notes, in passing, its awareness that correctional facilities are frequently overcrowded and, if the correctional facility where the Veteran is being held is overcrowded, the average monthly pay of a working inmate should be below $27.17 since the two-third fraction of the inmate population would increase proportionately to the increase of population, and the average monthly inmate's wages would decrease because two thirds of the population would be making the lower-range wages. But, out of an abundance of caution, the Board presumes that the average monthly wages at the Veteran's correctional facility are $27.17 since the Board's data is from 2017 (even though prison wages are typically not raised to account for inflation regardless of inflation experienced outside prisons). It follows that since DMC is recouping $136.24 from the Veteran's current $144.14 monthly VA benefits, she is left with $7.90 ($144.14 $136.24) difference per month, i.e., the Veteran has monthly income exceeding that of a lowest-paid working inmate by 75 cents but $19.27 ($27.17 $7.90) below the income of an average working inmate (and the difference is likely to increase in the Veteran's favor effective December 1, 2022, when new VA rates would be implemented). Since the Board's calculative analysis does not suggest that the Veteran is situated markedly worse than an average inmate at her facility, even if her assertion that she does not work at all at her correctional facility is true, the Board concludes that the nullification element also counsels against a waiver of her overpayment debt. The sole remaining element of the waiver analysis relevant to the circumstances at bar is that of addressing the Veteran's reliance on her VA benefits at the time when she incurred her outstanding debts other than her overpayment debt to VA. (The Board notes that the Veteran's lay statement and FSR filed in March 2018, i.e., more than three and a half years ago, might not reflect her current financial obligations due to debts being extinguished. However, out of an abundance of caution, the Board addresses all outstanding debts asserted by the Veteran in 2018.) The concept of reliance on VA benefits means that a beneficiary relinquishes a valuable right or incurs a legal obligation in reliance on his/her VA benefits. For instance, the reliance element might counsel in favor of the beneficiary if the evidence shows that (s)he: (a) declined a valuable opportunity, e.g., refused a job offer or business investment because (s)he relied on his/her VA benefits; and/or (b) entered a contractual agreement for goods or services, e.g., took a loan or began education that required a tuition, and the evidence establishes that (s)he would have declined entering the agreement had (s)he not had his/her VA benefits. The record demonstrates that the "(a)" type of considerations is inapplicable here. The Board, however, acknowledges that the Veteran requested a waiver of her overpayment debt due to her financial obligations to: (a) private or corporate lenders who provided her with funds to purchase medical and dental care, and prescription medications and eyeglasses; (b) the court who held her criminal prosecution and imposed a court fee and fines to be collected in favor of the State of Oregon and/or the victim(s) of her felony offenses; and (c) a credit union that refinanced the Veteran's vehicle. As detailed supra, the record shows that while being held in pretrial detention the Veteran expected that the amount of her VA benefits would be reduced upon her conviction (and expected the RO to "monitor" her criminal prosecution). Thus, the Veteran could not have relied on her future receipt of unadjusted VA benefits or any VA benefits: since the Veteran was spending the overpaid fund, thus exposing herself to the risk of recoupment of her VA debt from the reduced amount of her VA benefits at the time when she elected to purchase medical and dental care, and prescription medications and eyeglasses through out-of-pocket expenses instead of obtaining medical goods and services for her serious medical needs by relying on her constitutional rights. (The Board is without means to determine whether the Veteran had commenced a § 1983 civil action for damages and, thus, expects to be awarded compensation for her out-of-pocket expenditures if she prevails.) The Board also notes, in passing, that the Veteran, in her FSR, asserted that she was continuing to incur these expenses at a rate of $9,744.50 per month, i.e., $116,934 ($9,744.50 x 12) per year. Since such a rate of incurring an indebtedness would indicate that the Veteran enjoys a nearly unlimited credit line, and this fact would render her request for a waiver of her overpayment debt a mockery of the Board, the Board presumes that the $9,744.50 figure was provided in error. Turning to the Veteran's court-imposed fee and fines, the Board acknowledges that such fees and fines are payable to the court, the State of Oregon and the victim(s), and if left unpaid would become subject to interest accrual and might be turned to a collection agency. Therefore, the Board is mindful that such a collection could affect the Veteran's credit history upon her release. The Board, however, is also mindful that a convicted criminal defendant does not have to execute an agreement to repay a court-imposed debt while (s)he is serving his/her prison term since upon such a defendant's request the sentencing court would create a reasonable repayment plan actionable only upon release. Moreover, an inmate who does not repay her court-imposed fee and fines cannot be denied parole on the grounds of his/her bona fide indigency. A fortiori, an indigent inmate cannot have his/her term of imprisonment extended beyond the sentence imposed based on the inmate's inability to repay such a debt. Accord Bearden v. Georgia, 461 U.S. 660 (1983) (even a parolee might have his/her parole revoked only if (s)he had reasonable means to repay the debt imposed as part of his/her penal sentence, but such a revocation of parole cannot be imposed on an indigent parolee who is genuinely without means to make his/her agreed-upon incremental payments). Hence, even if the Board were to assume that the Veteran executes an agreement to repay her court-imposed fee and fines while she remains incarcerated, her position could be reduced to a statement that the Veteran seeks a waiver of her debt to VA because the Veteran: (a) prioritizes her debts to her commercial and private lenders on her personal emotional grounds; (b) does not wish incur an interest on her other debts; and (c) believes that depriving the taxpayers of recoupment of their funds overpaid to her through VA is a proper method to protect her credit record. Since all of these considerations fall outside the Board's waiver analysis, and because the Veteran conceded her pretrial-detention awareness of upcoming reduction in the amount of her VA benefits upon her conviction, the Veteran could not have relied on her VA benefits at the time when she executed her agreement to repay her court-imposed fee and fines: because such an agreement cannot be offered to a criminal defendant prior to his/her conviction and sentencing. Thus, the court-imposed fee and fines cannot qualify as a debt that the Veteran incurred in reasonable reliance on her receipt of VA benefits. The foregoing leaves the Board with the Veteran's claim that, in March 2018, she still had a debt in the amount of $5,272.84 for her vehicle due to refinancing of the vehicle in August 2017. Since the refinancing took place after the Veteran was convicted of her felony offenses in July 2017, plus the record shows that, at the time of entering her refinancing agreement, the Veteran knew that she would have her VA benefits reduced based on her July 2017 conviction of felony offenses, and that her use of full funds disbursed by VA post her conviction would yield an overpayment requiring recoupment, the Veteran could not have reasonably relied on her VA benefits at the time when she executed the refinancing agreement. Having carefully examined the Veteran's waiver contentions, the Board finds that all pertinent elements of the waiver analysis uniformly counsel against her waiver claim as to the overpayment debt created with regard to the period that ran from the 61st day following the date of her entry into the ODOC's post-conviction custody to the date preceding the date of the RO's final action. It follows that the Veteran's waiver claim should be denied. REASONS FOR REMAND The foregoing discussion, however, leaves one critical aspect unresolved. As detailed supra, the record is silent as to the basis for DMC's election to factor out the three-day period that ran from the date of the Veteran's conviction to the date of her being taken into the ODOC's post-conviction custody. Moreover, the record is equally silent as to the basis for the RO's election to delineate the Veteran's period of overpayment ensuing from her conviction of felony offenses as the period that began to run on the 61st day following the date of her conviction rather than the period that began to run on the 61st day after her placement in pretrial detention. In other words, the record is at best ambiguous as to whether the RO misread the language of 38 U.S.C. § 5313 and 38 C.F.R. § 3.665 and whether DMC failed to realize that the Veteran was moved from the jail where she was held after her conviction of felony offenses to the ODOC's post-conviction custody three days after her conviction. As detailed supra, CAVC guided in Majeed, 19 Vet. App. 525, that a debtor challenging his/her overpayment on appeal acts at his/her own risk since, upon an audit, the amount of his/her debt might be recalculated and increased. Here, the Veteran expressly challenges both the calculation of her overpayment debt and the length of the underlying overpayment period. Thus, under the holding of Majeed, the Board is obligated to direct the RO's to conduct further development enabling a review of: (a) the period that ran from the 61st day of the Veteran's pretrial detention to the date of her felony convictions; and (b) the three-day period from the date of the Veteran's conviction of her felony offences to the date of her placement into the ODOC's post conviction custody. Such a review would enable the RO to determine whether the Veteran should be charged with an additional overpayment with regard to the period that ran from the 61st day of the period of her pretrial detention to the 60th day of the ODOC's post-conviction custody over the Veteran. Simply put, because the Veteran is entitled to only 60 days of her confinement related to her felony offenses (be that relation based on the Veteran's actual placement in the ODOC's post conviction custody or the period of confinement that the ODOC credited against her post conviction custody), a determination as to how long the Veteran was receiving her unadjusted VA benefits while in confinement is critical. The matters are REMANDED for the following action: 1. Contact the court that presided over the Veteran's prosecution to determine whether the Veteran was released from confinement upon her conviction with permission to report to the ODOC's custody on July 17, 2017. In the event it is determined that the Veteran was not released from confinement upon her conviction of felony offenses, contact ODOC to determine whether this three-day period that ran from her date of conviction to the date of the Veteran's placement into the ODOC's post-conviction custody (i.e., the July 17, 2017, date of the Veteran's admission to her current correctional facility) was credited against her post conviction incarceration imposed based on her felony offenses. 2. Independently of and simultaneously with Step 1, contact the ODOC to determine whether any portion of the period that ran from the 61st day the Veteran's placement in pretrial detention to the date preceding the date of her conviction was credited against the Veteran's post conviction incarceration imposed based on her conviction of felony offenses. 3. If the ODOC provides information showing that no portion of the period that ran from the 61st day of the Veteran's pretrial detention to the date of her placement into the ODOC's post conviction custody was credited against her incarceration period imposed based on her felony offenses, issue the Veteran an Appeal Notification Letter confirming that her overpayment ensuing from incarceration imposed based on the Veteran's felony offenses is limited to $6,037.91. 4. In the event the ODOC provides information showing that at least a portion of the period that ran from the 61st day of the Veteran's pretrial detention to the date of her placement into the ODOC's post conviction custody was credited against her incarceration period imposed based on her felony offenses, request the ODOC to provide information as to: (a) the exact period credited against the Veteran's incarceration that was imposed based on her felony offenses and triggered on the date when the ODOC took the Veteran into its post-conviction custody; (b) the Veteran's date of eligibility for parole (with good-conduct credits factored in, if applicable); and (c) whether the Veteran has been performing and compensable work duties at her correctional facility. 5. In the event the ODOC provides information showing that at least portion of the period that ran from the 61st day of the Veteran's pretrial detention to the date of her placement into the ODOC's post conviction custody was credited against her incarceration period imposed based on her felony offenses, issue the Veteran a Supplemental Proposal Notice proposing to charge her with an overpayment created based on the so-credited period under 38 U.S.C. § 5313 and 38 C.F.R. § 3.665, and provide her with a reasonable opportunity to respond. 6. Upon providing the Veteran with an opportunity to respond, issue the Veteran a Supplemental Final Action Notice adjudicating the proposal stated in the Supplemental Proposal Notice. Such an adjudication should address, inter alia, the fact that L.K. notified a VHA official of the Veteran being held in pretrial detention, and the RO's used the word "following," rather than the word "for," when the RO created the Veteran's overpayment adjudicated in this Order. 7. In addition, the Supplemental Final Action Notice should inform the Veteran of the exact amount of the additional overpayment debt charged to her. 8. In the event the Supplemental Final Action Notice charges the Veteran with an additional overpayment debt, provide the Veteran with an opportunity to submit her updated FSR and serve her with VA Form 5655. 9. Upon receipt of the Veteran's updated FSR or expiration of her period to submit an updated FSR, avail COWC to the Veteran's claims file, to include this Remand Order, and request COWC's adjudication of the Veteran's claim for a waiver of the additional overpayment charged to her in the Supplemental Final Action Notice. 10. In the event the Veteran's claim for a waiver of the additional overpayment charged to the Veteran in the Supplemental Final Action Notice is denied by COWC, issue the Veteran an Appeal Notification Letter detailing her right to challenge COWC's denial before the Board and clarify that her appeal may also include challenges to the propriety of the creation of the additional overpayment and/or the validity of its amount. In addition, clarify to the Veteran that she could request a videoconference Board hearing with regard to her waiver claim, if any, provided that: (a) the Veteran elects to have a virtual hearing, during which she would be situated at her correctional facility, rather than at the RO; and (b) her correctional facility is equipped with means to conduct the Veteran's virtual Board hearing. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, 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.