Citation Nr: 0714177	
Decision Date: 05/14/07    Archive Date: 05/25/07

DOCKET NO.  05-02 830	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Whether the reduction of compensation benefits due to 
incarceration was proper.  

(The issue of entitlement to a waiver of the recovery of an 
overpayment of compensation benefits in the amount of 
$6,354.87 will be addressed in a separate decision.)


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. L. Krasinski, Counsel 




INTRODUCTION

The veteran served on active duty from April 1969 to February 
1971.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2003 determination of the 
Department of Veterans Affairs (VA) Regional Offices (RO) in 
Waco, Texas, which reduced the veteran's compensation 
benefits to the 10 percent rate effective June 13, 2003 due 
to his conviction of a felony and incarceration. 


FINDING OF FACT

On April 14, 2003, the veteran was convicted of a felony and 
was incarcerated and the RO reduced the veteran's 
compensation to the 10 percent rate effective June 13, 2003.  


CONCLUSION OF LAW

The reduction of the veteran's disability compensation to the 
10 percent rate effective June 13, 2003 due to incarceration 
for a felony conviction was proper.  38 U.S.C.A. § 5313 
(West 2002); 38 C.F.R. § 3.665 (2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

38 C.F.R. § 3.665 controls the compensation of incarcerated 
beneficiaries of VA benefits.  It provides that any person 
incarcerated in a Federal, State, or local penal institution 
in excess of 60 days for conviction of a felony will not 
receive compensation in excess of specified amounts.  See 
38 C.F.R. § 3.665(a).  If a veteran is rated 20 percent 
disabled or more, then the veteran will receive compensation 
payable under 38 U.S.C.A. § 1114(a), or the equivalent of a 
10 percent rating.  See 38 C.F.R. § 3.665(d)(1).  If the 
veteran is rated at less than 20 percent, then the veteran 
will receive one-half the rate of compensation payable under 
38 U.S.C.A. § 1114(a).  See 38 C.F.R. § 3.665(d)(2).

38 C.F.R. § 3.655 was amended during the pendency of this 
appeal.  See 68 Fed. Reg. 34,542 (June 10, 2003).  Those 
amendments concern the reduction of benefits for fugitive 
felons and therefore have no relevance in this case.

On April 14, 2003, the veteran was incarcerated for a felony 
conviction.  In an August 2003 letter, the RO notified the 
veteran that they were proposing to reduce his disability 
compensation to the 10 percent rate due to his felony 
conviction and incarceration.  The veteran was given 60 days 
to respond to this notice and present information or evidence 
in support of his claim that the reduction was improper.  At 
this time, the veteran had a total combined rating of 90 
percent.  In a November 2003 letter, the RO notified the 
veteran that his compensation benefits were reduced to the 10 
percent rate due to his felony conviction and incarceration 
effective June 13, 2003, which was the 61st day after his 
felony conviction.    

According to 38 C.F.R. § 3.665, the reduction in payment was 
proper, because the veteran had been incarcerated due to a 
felony conviction.

As a final matter, the Board has considered whether it has a 
duty to assist with further development of the claim.  See 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2006).  
Under the circumstances presented in this case, however, it 
is not the factual evidence that is dispositive of the 
present appeal, but rather the application of the law and 
regulations to the undisputed facts.  In such cases, it has 
been held that the duty to assist is not applicable.  See 
Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) 
(regarding entitlement to recognition as surviving spouse for 
purposes of reinstatement of death pension benefits, Court 
recognizes that neither duty to assist nor duty to notify are 
implicated when question is limited to interpretation and 
application of a statute).

Therefore, the Board finds that 38 C.F.R. § 3.665 governs the 
veteran's receipt of benefits during his period of 
incarceration.  Under that provision, a reduction to the 10 
percent rate is warranted and proper.


ORDER

Reduction of the veteran's compensation benefits to the 10 
percent rate due to his felony conviction and incarceration 
was proper.  The appeal is denied.  



______________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs