Mountford v. Shinseki, 2011
- Organization: CAVC
- Document Type: Brief/Motion Papers
- Date Created: Wednesday, November 30, 2016
- Submitted: Wednesday, November 30, 2016
- Attachment(s): PDF
Before KASOLD, Chief Judge, and LANCE and DAVIS, Judges.
DAVIS, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed a dissenting opinion.
DAVIS, Judge: U.S. Air Force veteran Steve W. Mountford appeals through counsel from a February 26, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to restoration of benefits for his service-connected schizophrenia prior to May 25, 2004, because he was found to be a "fugitive felon" under 38 U.S.C. § 5313B.
On December 27, 2001, Congress enacted 38 U.S.C. § 5313B. That statute bars veterans and their dependents from receiving VA benefits while veterans or their beneficiaries are "fugitive felons." 38 U.S.C. § 5313B(a). Mr. Mountford argues that the Board's determination that he was a fugitive felon from December 21, 2001, to May 25, 2004, pursuant to section 5313B was erroneous as a matter of law and that his benefits should be fully restored for that period. For the followingreasons, the Court will affirm the Board's February 2009 decision.
Based on the foregoing, the Court AFFIRMS the February 26, 2009, Board decision. KASOLD, Chief Judge, dissenting: Mr. Mountford is a U.S. Air Force veteran, service connected for schizophrenia since 1978; he has had a total disability rating since 1997. He pled nolo contendere to attempted burglary in 1994 and was placed on probation. He failed to comply with all of the probationary requirements and a warrant for his arrest issued in September 1994. The warrant remained outstanding for over nine years, despite Mr. Mountford's travels into and out of the country in relative freedom. The Board found that Mr. Mountford had no knowledge of the warrant, and the record reflects that upon notice from VA that a warrant was outstanding and that he should explain why his VA benefits should not be recouped and stopped, Mr. Mountford promptly turned himself in and settled the matter with the state. Subsequently, the Secretary notified Mr. Mountford that his benefits were fully restored.
For reasons unexplained, and without following regulation, the Secretary initiated action two years later to recoup over $63,000 for a period of time that Mr. Mountford received benefits and when neither he nor VA was aware that he had a warrant outstanding, culminating in this appeal.