Citation Nr: 0803507           

Decision Date: 01/31/08    Archive Date: 02/08/08

DOCKET NO.  05-30 516    )           DATE



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


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.


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.


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).



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. §§ 3.103(b)(2), 3.105(h).

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

incarceration.  The 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, 3.665.

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.



Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Compensation News ]