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Does VA Compensation Stop During Periods of Incarceration? (Mulder v. Gibson)

Mulder v. Gibson (No. 12-1222)

Welcome back after our weeklong holiday!  Today we will begin looking at recent decisions from the U.S. Court of Appeals for Veterans Claims (CAVC).  The CAVC is the federal appeals court that decides cases that are appealed from the Board of Veterans Appeals (BVA).  Our summaries of court decisions are meant to give you the essential information about the decision.  If you’d like to read the entire decision, here is the link.

In this case, Mr. Mulder had been issued a 50% disability rating in April 1998.  In May 2006, he pled “no contest” to a felony charge and was placed into the custody of the Milwaukee County Sheriff’s Department.  In June 2006, he was then sentenced; interestingly, he was sentenced various times after those sentences were vacated for various reasons. The VA then reduced Mr. Mulder’s benefit payments in July 2006, which was 60 days after the date of his incarceration.

The Veterans regulations state 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 … beginning on the 61st day of incarceration.”  38 C.F.R. 3.665(a).  The dispute in the case pertained to the issue of when a person is actually “incarcerated … for [a] conviction of a felony.”  The veteran argued that this regulation did not apply until his sentencing was complete because under Wisconsin state law, the state did not consider him convicted of a felony until he was properly sentenced.

The Court provided a lengthy legal analysis which can be summed up into four basic elements that must be met prior to the VA stopping benefits under this provision:  (1) the veteran must be jailed; (2) for a period over 60 days; (3) the veteran must actually be convicted; and (4) and the conviction must be for a felony.

Here is the take away from this case: if you get convicted of a felony and you’re in jail for longer than 60 days, your benefits are going to stop.

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