Citation Nr: 0803507
Date: 01/31/08 Archive Date: 02/08/08
DOCKET NO. 05-30 516 )
On appeal from the Department
of Veterans Affairs Regional Office in Indianapolis, Indiana
Whether the decision to reduce the veteran's disability compensation benefits due
to incarceration was correct.
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Elizabeth Jalley, Associate Counsel
The veteran served on active duty from August
1975 to December 1975 and from March 1977 to October 1978.
This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January
2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.
FINDING OF FACT
On November [redacted], 2003, the veteran was
incarcerated in a state prison system for a felony conviction, and the term of hisincarceration has exceeded 60 days.
CONCLUSION OF LAW
The reduction of the veteran's disability
compensation benefits to the equivalent of a 10 percent evaluation, effective from January 9, 2004, due to incarceration for
a felony conviction, was proper. 38 U.S.C.A. §§ 5107, 5313 (West 2002); 38 C.F.R. §§
3.103, 3.105, 3.665 (2007).
REASONS AND BASES
FOR FINDING AND CONCLUSION
The Veterans Claims Assistance
Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R §§ 3.102, 3.156(a),
3.159, 3.326(a) (2007).
VCAA requirements, however, are not applicable in this case for two reasons. First, the law and not the
factual evidence is dispositive of this claim. Mason v. Principi, 16 Vet. App. 129, 132 (2002); Smith v.
Gober, 14 Vet. App. 227, 231- 32 (2000). Second, the issue on appeal arises under 38 U.S.C.A. § 5313,
which requires a reduction of benefits for certain incarcerated veterans, and not from the receipt of a substantially complete
application from the veteran. See 38 U.S.C.A. § 5103(a). Thus, the VCAA is not
applicable to this appeal, and further discussion of compliance with the VCAA is not required.
However, VA must notify the veteran that his
benefits are subject to reduction due to his incarceration, of the rights of dependents to an apportionment while the person
is incarcerated, and conditions under which payments to the person may be resumed upon release from incarceration.
38 C.F.R. § 3.665(a). In addition, no award of compensation shall be reduced or otherwise adversely
affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which
to submit evidence for the purpose of showing that the adverse action should not be taken. 38 C.F.R. §§
Here, an October 2003 VA letter clearly notified the veteran of the proposed reduction of compensation benefits due to incarceration,
any dependent's rights to apportionment, and the possible resumption of benefits upon his release from
letter also notified the veteran that he had 60 days in which to submit evidence to show that the adverse action should not
be taken. Accordingly, VA's notification duties have been met. 38 C.F.R. §§ 3.103, 3.105,
Any person who is incarcerated
in a federal, state, or local penal institution in excess of 60 days for conviction of a felony shall not be paid compensation
in excess of the amount specified in 38 C.F.R. § 3.665(d) beginning on the 61st day
of incarceration. 38 C.F.R.
§ 3.665(a). In the case of a veteran with a service-connected disability rated at 20 percent or more,
the veteran shall not be paid an amount that exceeds the rate under 38 U.S.C. § 1114(a), which is at the rate of 10 percent.
38 C.F.R. § 3.665(d).
As of February 28, 1996, the veteran's service-connected residuals of a right shoulder injury were assigned
a 20 percent evaluation. In November 2003, VA received confirmation that the veteran was incarcerated,
effective November [redacted], 2003. The veteran does not dispute that he was incarcerated on that date.
In January 2004, the veteran's benefits were reduced to an amount equivalent to a 10 percent evaluation effective
January 9, 2004, the 61st day of incarceration.
The veteran does not contend, and the evidence does not show, that the conviction has been overturned.
Accordingly, the requirements for the reduction of the veteran's disability compensation benefits due to incarceration
have been met. 38 C.F.R. § 3.665.
Because the law, rather than the facts in this case, is dispositive, the benefit-of-the-doubt
doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002).
Because the reduction in disability compensation was proper, the appeal is denied.
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board
of Veterans' Appeals
Department of Veterans Affairs
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