Donald Mulder v. Sloan D. Gibson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 12-1222

DONALD MULDER, APPELLANT,

V.

SLOAN D. GIBSON,

ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 23, 2014 Decided July 8, 2014)

Travis J. West of Madison, Wisconsin, was on the brief for the appellant.

Bryan W. Thompson, Appellate Attorney, with whom Will A. Gunn, General Counsel; R.

Randall Campbell, Assistant General Counsel; and Nisha C. Hall, Deputy Assistant General

Counsel; all of Washington, D.C., were on the brief for the appellee.

Before HAGEL, MOORMAN, and BARTLEY, Judges.

HAGEL, Judge: Donald L. Mulder appeals through counsel a March 27, 2012, Board of

Veterans' Appeals (Board) decision that found that a reduction of VA disability compensation

payments due to incarceration for conviction of a felony pursuant to 38 C.F.R. § 3.665(a), effective

July 19, 2006, was proper.1 Mr. Mulder's Notice of Appeal was timely, and the Court has jurisdiction

to review the Board decision pursuant to 38 U.S.C. § 7252(a).

On January 15, 2014, this appeal was assigned to a panel of the Court, which heard oral

argument on April 23, 2014. The precise question before the panel is whether the Board erred in

1

The Board also remanded the issue of whether the removal of Mr. Mulder's spouse as a dependent due to

divorce effective October 1, 2006, was proper. The Board also determined that the finding that Mr. Mulder was a fugitive

felon resulting in termination of disability compensation benefits payments for the period between May 16, 2005, and

July 11, 2005, was not proper. Therefore, the Board remanded the issue of whether an overpayment of disability

compensation benefits in the amount of $10,399.83 was properly created for that time period. Accordingly, those matters

are not before the Court at this time. See 38 U.S.C. § 7266(a) (stating that the Court reviews only final decisions of the

Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (Board remand does not constitute a final

decision that may be appealed (citing 38 C.F.R. § 20.1100(b) (1999))).

concluding that the proper effective date for the reduction of disability compensation payments for

a veteran who has been incarcerated for conviction of a felony for over 60 days begins at the date

of conviction rather than the date of sentencing pursuant to 38 C.F.R. § 3.665(a). We conclude that

the Board did not err. Accordingly, the Court will affirm the March 2012 Board decision.

I. FACTS

Mr. Mulder served on active duty in the U.S. Army from April to December 1982, from

October 1992 to April 1993, and November 1993 to November 1994. Record (R.) at 172.

In April 1998, a VA regional office awarded Mr. Mulder a 50% combined disability rating

for multiple service-connected conditions, including a back disability rated 40% disabling. R. at 490.

That decision became final.

In May 2006, Mr. Mulder's former spouse notified VA that Mr. Mulder was incarcerated.

R. at 321-22. In February 2007, VA received confirmation of this fact from Racine Correctional

Facility in Racine, Wisconsin. R. at 318-20. In June 2007, VA obtained Wisconsin Circuit Court

records from the Wisconsin Consolidated Court Automation Program website, which reveal that on

May 19, 2006, Mr. Mulder pled "no contest" to a felony charge. R. at 312. That record also stated

that on that date the "[c]ourt found defendant guilty as charged in the information and ordered a

Judgment of Conviction to be entered on the record. . . . Court ordered defendant REMANDED into

the custody of the Milwaukee County Sheriff's Department." Id. On June 16, 2006, Mr. Mulder was

sentenced.2

In July 2007, VA sent Mr. Mulder a proposed rating reduction that notified him that his

benefit payments would be reduced on the 61st day after incarceration for conviction of a felony,

pursuant to § 3.665(a). R. at 304. In August 2007, Mr. Mulder submitted a statement to VA

indicating that his "sentence was VACATED." R. at 275-76. Attached to his statement was a letter

from the Wisconsin Public Defender's office that stated, "[t]here is no written [conviction] order; [the

judge] delivered his ruling orally." R. at 277. According to a September 2007 VA report of contact,

Mr. Mulder's social worker reported that he was "still incarcerated and no ruling has been made

2

Mr. Mulder's sentence was vacated and modified multiple times. As discussed extensively in Part III.C. below,

however, those modifications had no effect on the date of his conviction.

2

about overturning his guilty plea." R. at 272. That same month, VA sent Mr. Mulder a rating

decision that implemented the rating reduction, effective July 19, 2006, 61 days after May 19, 2006,

the date of Mr. Mulder's plea of no contest and incarceration for that felony. R. at 270. In October

2007, Mr. Mulder filed a Notice of Disagreement with that decision and ultimately appealed to the

Board.

In August 2009, Mr. Mulder submitted copies of his Judgment of Conviction from the

Wisconsin Circuit Court that lists the date May 19, 2006, under the heading "Date(s) convicted." R.

at 57.

In March 2012, the Board issued the decision on appeal finding that, among other things, the

reduction of Mr. Mulder's VA benefits payments effective July 19, 2006, was proper. The Board

explained that "[p]ertinent court records list [Mr. Mulder's] conviction date as May 19, 2006." R. at

13. The Board acknowledged that Mr. Mulder's sentence had been vacated and modified, but found

that "the conviction itself has not been overturned or vacated[,] and [he] remains incarcerated." Id.

This appeal followed.

II. PARTIES' ARGUMENTS

Mr. Mulder raises four arguments on appeal. First, he argues that the Board misinterpreted

38 U.S.C. § 5313 and 38 C.F.R. § 3.665(a) when it concluded that he was incarcerated "for

conviction of a felony" as of May 19, 2006.3 Specifically, Mr. Mulder relies on Wisconsin State

statute § 972.13(3) for the proposition that he was not incarcerated for conviction of a felony until

his judgment of conviction and pronouncement of sentence were entered. Appellant's Br. at 10-11.

Second, he argues that the Board erred when it determined that VA satisfied its duties to assist and

notify. Third, he argues that the Board failed to address a reasonably raised claim for reinstatement

of benefits. Fourth, he argues that the Board's determination that he incurred a debt as a result of

overpayment is clearly erroneous.

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Mr. Mulder states in his opening brief that although he "refers to the statutory provision for the sake of

consistency and clarity . . .[he] notes that the analysis provided herein applies equally to the regulation as well."

Appellant's Brief (Br.) at 15 n.5. Therefore, the Court will refer to the regulatory provision throughout its decision.

3

The Secretary disputes these assertions and argues that the Board properly applied § 3.665(a)

when it determined that the date of incarceration for conviction of a felony rather than the date of

sentencing triggered the reduction of Mr. Mulder's benefits. In support of this assertion, the Secretary

cites a precedential VA General Counsel decision in which the General Counsel determined that the

reduction of benefits does not begin until after "the pronouncement of guilt for [the] requisite crime"

and "period of incarceration for purposes of [section 5313], [] include[s] any period of incarceration

between the date of conviction and the date of sentencing." See VA Gen. Coun. Prec. 3-2005 (Feb.

23, 2005) (emphasis added). The Secretary also asserts that the duty to assist was not for application

as Mr. Mulder was not entitled to benefits during the requisite time period as a matter of law and the

Court lacks jurisdiction over the portion of the Board decision addressing overpayment of benefits

III. ANALYSIS

A. Effective Date for Reduced Compensation Payments

First, Mr. Mulder argues that the Board misinterpreted § 3.665 when it used the date of

conviction rather than the date of sentencing to calculate the effective date of his reduced

compensation payments. This is a question of law that the Court reviews de novo. See 38 U.S.C.

§ 7261(a)(1); Smith v. Gober, 14 Vet.App. 227, 230 (2000).

Section 5313 provides that

any person who is entitled to compensation . . . and who is incarcerated in a Federal,

State, local, or other penal institution or correctional facility for a period in excess of

[60] days for conviction of a felony shall not be paid such compensation . . . for the

period beginning on the [61st] day of such incarceration and ending on the day such

incarceration ends.

38 U.S.C. § 5313(a)(1). The Secretary implemented section 5313 in 38 C.F.R. § 3.665(a), which

similarly provides that "[a]ny person . . . who is incarcerated in a Federal, State or local penal

institution in excess of 60 days for conviction of a felony will not be paid compensation . . . in excess

of the amount specified in paragraph (d) of this section beginning on the 61st day of incarceration."4

4

Subsection (d) provides:

Amount payable during incarceration--

(1) Veteran rated 20 percent or more. A veteran to whom the provisions of paragraphs (a) and (c) of

4

Accordingly, the elements that must be present before VA can reduce a veteran's benefits pursuant

to § 3.665(a) are: (1) incarceration in a penal institution; (2) for a period in excess of 60 days; (3) a

conviction; and (4) a felony.

Mr. Mulder's only dispute ultimately lies with the definition of "incarcerated . . . for

conviction of a felony." Although Mr. Mulder concedes that he was incarcerated between May 19,

2006, and June 16, 2006, he asserts that he had not yet been incarcerated for his felony conviction

for purposes of § 3.665(a) because, until the date of his sentencing, he continued to be incarcerated

pursuant to the Wisconsin bail statute. In other words, Mr. Mulder asserts that in his case,

incarceration between conviction and sentencing was not "incarcera[tion] . . . for conviction of a

felony" pursuant to § 3.665(a), and consequently the 61-day trigger should have begun on June 16,

2006, the date of sentencing, rather than May 19, 2006, the date he pled no contest.

The Secretary asserts that "incarceration after conviction, but before sentencing, for a felony

triggers the 60-day period of full benefits payments described in Section 5313." Secretary's Brief

(Br.) at 21. The Court agrees with the Secretary.

1. Plain Meaning

First, a plain reading of the statutory and regulatory language compels the conclusion that

incarceration following conviction, but prior to sentencing, triggers the 60-day period pursuant to

section 5313 and § 3.665(a). Determining a statute's or a regulation's plain meaning requires

examining the specific language at issue and the overall structure of the statute. Gardner v.

Derwinski, 1 Vet.App. 584, 586 (1991) (citing Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05

(1988)), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir.1993), aff'd, 513 U.S. 115 (1994).

"On review, if the meaning of the regulation is clear from its language, then that is the 'end of the

this section apply with a service-connected disability evaluation of 20 percent or more shall receive

the rate of compensation payable under 38 U.S.C. 1114(a).

(2) Veteran rated less than 20 percent. A veteran to whom the provisions of paragraphs (a) and (c) of

this section apply with a service-connected disability evaluation of less than 20 percent (even though

the rate for 38 U.S.C. 1114(k) or (q) is paid) shall receive one-half the rate of compensation payable

under 38 U.S.C. 1114(a).

(3) Surviving spouse, parent or child. A surviving spouse, parent, or child, beneficiary to whom the

provisions of paragraphs (a) and (c) of this section apply shall receive one-half the rate of

compensation payable under 38 U.S.C. 1114(a).

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matter.'" Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006) (quoting Gardner, 513 U.S. at 120).

Further, the United States Supreme Court has held that, "unless otherwise defined, words [in a

statute] will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v.

United States, 444 U.S. 37, 42 (1979).

When reading section 5313(a)(1) as a whole, the plain language is clear that the 60-day

calculation begins on the 1st day of incarceration for conviction of a felony. See Wilson v.

Gibson,__F.3d__,__,No. 2013-7037, 2014 WL 2579614, at *5 (Fed. Cir. June 10, 2014) (holding

that "[r]eduction of compensation benefits begins on the [61st] day of incarceration for a felony

conviction."). Neither the statute nor the corresponding regulation, § 3.665(a), makes any reference

to sentencing. Both section 5313(a)(1) and § 3.665(a) use the term "conviction," which means "[t]he

act or process of judicially finding someone guilty of a crime; the state of having been proved

guilty." BLACK'S LAW DICTIONARY 384 (9th ed. 2009); see Wilson, 2014 WL 2579614, at *4

(adopting the Black's Law Dictionary definition of "conviction."). Similarly, here, the Court

concludes that the ordinary meaning of conviction does not relate to sentencing; rather, it relates to

the determination of guilt. Here, it is undisputed that Mr. Mulder pled "no contest" to a felony

charge, that the judge accepted his plea on May 19, 2006, and that Mr. Mulder remained in custody

for the felony from that time forward. See R. at 57, 312. Contrary to Mr. Mulder's assertions, the date

of sentencing is irrelevant to the determination that an individual has been "convicted" for the

purposes of § 3.665(a).

Moreover, to the extent that Mr. Mulder argues that the word "for" in the phrase "for

conviction of a felony" requires a nexus between incarceration and conviction, that requirement is

clearly satisfied here. At the time that Mr. Mulder pled "no contest" on May 19, 2006, he was

"remanded into the custody of the Milwaukee County Sheriff's Department" (R. at 312) and, thus,

was incarcerated "for conviction of a felony" as of that date. 38 C.F.R. § 3.665(a).

Further, the fact that Mr. Mulder's pre-conviction incarceration was eventually converted to

time served as part of his sentence, thereby decreasing the amount of time he would spend in jail

post-conviction, is inapposite here. During his pre-trial confinement, Mr. Mulder was in receipt of

his full benefits. The fact that the state of Wisconsin may have converted Mr. Mulder's pre-trial

confinement to post-conviction credit towards his sentence has no bearing on Mr. Mulder's VA

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benefits, as § 3.665(i) specifically provides for "resumption of payment of full disability

compensation" upon release.5 Shephard v. Shinseki, 26 Vet.App. 159, 163 (2013). Consequently,

the Court concludes that the Board's interpretation of section 5313 and § 3.665(a) is consistent with

the plain language of the provisions. See Gardner, 1 Vet.App. at 586.

2. Persuasiveness of the Secretary's Interpretation

To the extent that the phrase "incarcerated . . . for conviction of a felony" found in section

5313 and § 3.665 can be read as ambiguous, the Secretary argues that the Court should look to the

agency's interpretation of this language, provided in a VA General Counsel Precedent Opinion. See

VA. Gen. Coun. Prec. 3-2005 (Feb. 23, 2005). It is well established that courts should defer to an

agency's interpretation of its own ambiguous regulation so long as that interpretation is not

inconsistent with the language of the regulation or otherwise plainly erroneous and represents the

agency's considered view on the matter. See Smith v. Nicholson, 451 F.3d 1344, 1349 (Fed. Cir.

2006) (citing Auer v. Robbins, 519 U.S. 452, 461-62 (1997)); Mason v. Shinseki, 26 Vet.App. 1, 7

(2012); Tatum v. Shinseki, 24 Vet.App. 139, 142 (2010). "The Supreme Court has held that an

agency's interpretation of its own regulations is entitled to substantial deference by the courts."

Smith, 451 F.3d at 1349; see United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 202

(2001); Auer, 519 U.S. at 461-62; Martin v. Occupational Safety & Health Review Comm'n, 499

U.S. 144, 151 (1991). Further, when a court interprets an administrative regulation, it "must

necessarily look to the administrative construction of the regulation if the meaning of the words used

is in doubt." Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). The administrative

construction becomes "of controlling weight unless it is plainly erroneous or inconsistent with the

regulation." Id.; see also Haas v. Peake, 525 F.3d 1168, 1186 (Fed. Cir. 2008).

Substantial deference to an agency's interpretation of an ambiguous regulation is not due,

however, if the regulation in question merely parrots the statute. Gonzales v. Oregon, 546 U.S. 243,

257 (2006); Haas, 525 F.3d at 1186 (if deference were due to such interpretations, "an agency could

bypass meaningful rule-making procedures by simply adopting an informal 'interpretation' of

5

To the extent that Mr. Mulder believes his conviction date in records from the Wisconsin Circuit Court is

incorrect, he must seek relief from the appropriate Wisconsin state court to modify the court order upon which VA relied.

7

regulatory language taken directly from the statute in question"); see also Christensen v. Harris

County, 529 U.S. 576, 588 (2000) (an agency cannot "under the guise of interpreting a regulation .

. . create de facto a new regulation"). Rather, in circumstances where the regulatory language mirrors

the statute, "the question presented is one of statutory interpretation." Sharp v. Shinseki, 23 Vet.App.

267, 275 (2009); see also Gonzales, 546 U.S. at 257 ("[T]he existence of a parroting regulation does

not change the fact that the question here is not the meaning of the regulation but the meaning of the

statute.").

The Secretary interprets section 5313 and § 3.665(a) as permitting the calculation of the 61st

day beginning from the date of conviction for a person who is incarcerated for conviction of a felony.

In support of his interpretation, the Secretary relies on VA General Counsel Precedent Opinion 3-

2005, which states that

the [61st] day for purposes of 38 U.S.C. §[] 5313(a) . . . cannot occur until [61] days

after a judge or jury has found an individual guilty of a crime and the individual has

been imprisoned or incarcerated because of the determination of guilt. Thus, although

a veteran may have been incarcerated prior to conviction[,] and although the period

of incarceration prior to conviction may have been credited against the veteran's

sentence, the [61st] day of incarceration should[,] for this purpose[,] be measured

from the date all conditions precedent have occurred, including pronouncement of

guilt by a judge or jury. However, once a veteran is imprisoned or incarcerated in

a penal institution because of pronouncement of guilt for a requisite crime, the

period of incarceration for purposes of [section 5313], would include any period of

incarceration between the date of conviction and the date of sentencing.

VA Gen. Coun. Prec. 3-2005 (Feb. 23, 2005) (emphasis added).

The language "incarcerated . . . for conviction of a felony" found in § 3.665(a) mirrors exactly

the language used by Congress in section 5313(a)(1). See Part III.A, ante. Although the regulation

defines and clarifies certain other aspects of section 5313, it does not define or clarify the meaning

of "incarcerated . . . for conviction of a felony." 38 U.S.C. § 5313(a)(1); see, e.g., 38 C.F.R.

§ 3.665(c) (clarifying the veterans to whom the § 3.665 benefit reduction applies); § 3.665(d)

(defining compensation payment amounts for veterans receiving various disability evaluations).

Accordingly, although the VA General Counsel opinion may be said to be interpreting regulatory

language, the portion of the regulation at issue parrots the statute. See Gonzales, 546 U.S. at 257

(regulation merely parrots statute where it "just repeats two statutory phrases and attempts to

8

summarize the others" and "gives little or no instruction on a central issue"). Moreover, in purporting

to clarify the ambiguous term, the VA General Counsel opinion specifically cites the statute. See VA.

Gen. Coun. Prec. 3-2005 (Feb. 23, 2005). The question at hand is therefore one of statutory

interpretation. See Gonzales, 546 U.S. at 257; Sharp, 23 Vet.App. at 275.

An agency interpretation through other than congressionally delegated authority is not

entitled to deference under Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842-45 (1984). Sharp, 23 Vet.App. at 275. Rather, the extent to which the interpretation is

entitled to respect "will depend upon the thoroughness evident in [the agency's] consideration, the

validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors

which give it power to persuade." Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see also

Gonzales, 546 U.S. at 256; Sharp, 23 Vet.App. at 275.

VA General Counsel precedent opinions "constitute a body of experience and informed

judgment" on VA's part, Osman v. Peake, 22 Vet.App. 252, 256 (2008), and the Board is "bound in

its decisions by the . . . precedent opinions of the chief legal officer of the Department." 38 U.S.C.

§ 7104(c). However, this Court is not so bound, Hornick v. Shinseki, 24 Vet.App. 50, 52-53 (2010),

and we analyze VA General Counsel opinions according to their "power to persuade," under

Skidmore. See Hornick, 24 Vet.App. at 53; Osman, 22 Vet.App. at 256. Accordingly, to the extent

that section 5313's language regarding "incarcerated . . . for conviction of a felony" is construed as

ambiguous, VA General Counsel Opinion 3-2005 is entitled to respect from this Court insofar as it

has the "power to persuade." Skidmore, 323 U.S. at 140.

The Court concludes–to the extent that the statute can be read as ambiguous–that the

Secretary's interpretation is persuasive and entitled to respect. The interpretation is presented with

supporting rationale, has not been shown to be inconsistent with any other position taken by the

Secretary on the issue, and, as discussed in Part III.A.1., is consistent with the plain language of the

statute, in that the focus is on the date of conviction rather than the date the sentence is entered. See

Skidmore, 323 U.S. at 140; see also Wanless v. Shinseki, 23 Vet.App. 143, 150-51 (2009) (holding

that the VA general counsel opinion interpreting section 5313 was entitled to respect where the

interpretation was accompanied by supporting rationale and was not inconsistent with previous VA

positions); Sharp, 23 Vet.App. at 275 (rejecting VA interpretation of ambiguous language where the

9

Secretary offered no support for his interpretation); Osman, 22 Vet.App. at 259-60 (rejecting VA

General Counsel interpretation that was inconsistent with a prior interpretation).

Further, as to Mr. Mulder's argument that until he was sentenced he was not incarcerated for

conviction of a felony because the Wisconsin bail statute did not require that he be incarcerated prior

to sentencing, the Court finds persuasive the fact that neither section 5313 nor § 3.665(a) mentions

state law, particularly in light of the fact that Congress has previously explicitly incorporated state

law when crafting veterans benefits statutes, and VA has done the same in crafting regulations. See,

e.g., 38 U.S.C. § 103(c) (stating that whether a person is married for purposes of VA benefits is

defined by "the law of the place where the parties resided at the time of the marriage or the law of

the place where the parties resided when the right to benefits accrued."); 38 C.F.R § 1.464 (2014)

(defining minor as "a person who has not attained the age of majority specified in the applicable

State law") (emphasis added); 38 C.F.R. § 3.53(b)(2014) ("State laws will not control in determining

questions of desertion . . . .") (emphasis added). Thus, the Court concludes that if Congress or VA

intended to rely on state-specific definitions of "incarcerated . . . for conviction of a felony" it was

well aware of how to draft language to reflect that governing principle. The fact that neither did so

in the case of section 5313 and § 3.665(a) is instructive.

Moreover, the Secretary's interpretation is also consistent with Congress's "main stated

objective [in] the avoidance of duplicative Government expenditures that would result in a windfall

for those convicted of felonies." Wanless, 23 Vet.App. at 149. In other words, Congress and VA have

concluded that, "if the taxpayers are financing a veteran's incarceration, it is contrary to the public

good to also pay him full VA disability benefits." Id. at 148. The reduction of benefits under

§ 3.665(a) is not triggered upon arrest, but only once a formal finding of guilt is made and a veteran

has been incarcerated for a period of in excess of 60 days. Here, the Secretary has determined that

paying full benefits to veterans convicted and incarcerated for at least 61 days would result in a

windfall and accordingly has created a safeguard–§ 3.665(a)–to balance the government's interest

in avoiding duplicative benefits with the need to ensure that a veteran's benefits are not prematurely

reduced. By waiting to reduce a veteran's benefits until the 61st day of incarceration, the Secretary

is, in effect, ensuring that the veteran will be "fully supported by tax dollars," for the foreseeable

10

future and that she or he will therefore no longer need VA disability benefits to help "maintain a

standard of living." Id. This is consistent with the stated purpose of section 5313 and § 3.665(a).

The Secretary's interpretation in determining when benefits should be reduced upon

incarceration is persuasive. See Skidmore, 323 U.S. at 140. Consequently, to the extent that the

statute can be read as ambiguous, the Court concludes that the Secretary's interpretation is entitled

to respect. See Wanless, 23 Vet.App. at 150-51.

B. Duties to Notify and Assist

Mr. Mulder raises a general assertion of error that VA failed to assist him in obtaining

necessary records to adjudicate his claims. Specifically, he references July and September 2007 VA

notice letters and contends that "VA never informed [him] that it believed that it would be unable

to obtain the necessary records directly." Appellant's Br. at 18. A review of the record reveals that

the July and September 2007 VA notice letters both pertained to the reduction of VA compensation

payments due to incarceration as well as Mr. Mulder's status as a fugitive felon.

To the extent that Mr. Mulder raises this argument with respect to the issue of his status as

a fugitive felon, the Board made a favorable finding on appeal with respect to that matter and

determined that Mr. Mulder's status as a "fugitive felon" for a period of time was improper.

Accordingly, that matter is not currently before this Court. See Hibbard v. West, 13 Vet.App. 546,

549 (2000) (per curiam order) (stating that the Court's jurisdiction is statutorily limited to appeals

of final Board decisions that are adverse to the claimant).

To the extent that Mr. Mulder raises this argument with respect to the issue of payment

reduction as a result of incarceration, the Board explained that VA did not have a duty to assist him

"because there is no dispute as to the relevant facts and the law is controlling." R. at 5; see Dela Cruz

v. Principi, 15 Vet.App. 143, 149 (2001) (explaining that the Veterans Claims Assistance Act is not

applicable where law, not factual evidence, is dispositive); Smith, 14 Vet.App. at 231-32 (explaining

that the Veterans Claims Assistance Act has no effect on an appeal limited to interpretation of law).

Here, as discussed at length above, section 5313 and § 3.665(a) are controlling as a matter

of law, and, as discussed below, there was no dispute as to whether Mr. Mulder's sentence had been

overturned, only an indication that he had been resentenced. The Veterans Claims Assistance Act

is therefore not for application. See Dela Cruz, 15 Vet.App. at 149. The Court concludes that the

11

Board's determination in this regard is not clearly erroneous. See Hersey v. Derwinski, 2 Vet.App.

91, 94 (1992) ("A factual finding 'is "clearly erroneous" when although there is evidence to support

it, the reviewing court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.'") (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948)).

C. Reinstatement of Benefits

Mr. Mulder next argues that the Board "failed to comply with the duty to infer and adjudicate

claims or issues reasonably raised by the record and/or failed to assist [him] in developing his claim

for reinstatement of benefits." Appellant's Br. at 24.

First, Mr. Mulder states that he informed VA that his conviction had been overturned and that

a claim for reinstatement of his benefits was therefore reasonably raised. In support of his argument,

he cites various documents in the record. A review of those records, however, reveals that he

informed VA that his sentence had been vacated and modified, not that his conviction had been

overturned. See R. at 26, 29, 46, 54, 68, 87-88, 208, 219, 231, 244, 291; see also Dixon v. Nicholson,

20 Vet.App. 544, 549 (2006) ( "If a veteran's felony conviction is 'overturned on appeal[,]' VA must

restore any withheld disability compensation benefits."(quoting 38 C.F.R. § 3.665(m)); citing Otero-

Castro v. Principi, 16 Vet.App. 375, 380 (2002)). Accordingly, the Court is not persuaded by this

argument.

Second, the Board acknowledged the modifications of Mr. Mulder's sentence and stated that,

"although [his] sentence has been vacated on more than one occasion during the pendency of the

claim . . . , the conviction itself has not been overturned or vacated[,] and [he] remains incarcerated."

R. at 13 (emphasis added). A review of the record does not reveal any evidence that Mr. Mulder's

conviction date had changed or that he had been released from prison. Accordingly, the Board had

no cause to consider whether reinstatement of benefits was warranted. See Robinson v. Shinseki,

557 F.3d 1355, 1361-62 (Fed. Cir. 2009) (holding that the Board is obligated to consider arguments

or issues raised by the record, even if not raised by the claimant).

D. Overpayment

Finally, Mr. Mulder argues that "VA inappropriately asserts that any overpayment occurring

as a result of its failure to timely implement its withholding obligation under [38 U.S. C. §] 5313

12

created a debt." Appellant's Br. at 29. As noted in footnote 1 above, the issue of whether an

overpayment of disability compensation benefits payments was properly created was remanded by

the Board and is not before the Court at this time.6 See 38 U.S.C. § 7266(a) (stating that the Court

reviews only final decisions of the Board); see also Howard, 220 F.3d at 1344.

III. CONCLUSION

Upon consideration of the foregoing, that portion of the March 27, 2012, Board decision

finding that the effective date of July 19, 2006, for the reduction of Mr. Mulder's disability

compensation benefits payments due to incarceration, was proper is AFFIRMED.

6

To the extent that Mr. Mulder cites a Statement of the Case and asserts error on the part of the regional office,

the Court reminds him that it has no jurisdiction over regional office decisions. Hibbard, 13 Vet.App. at 549.

13