[00:00:00] Speaker 01:
5313 by its terms does not and cannot create a debt.

[00:00:06] Speaker 01:
This is so because the veteran is receiving benefits to which he is legally entitled and that the operation of 5313 does not result in the veteran receiving benefits which he or she is not entitled to during a period of incarceration.

[00:00:23] Speaker 01:
Congress chose to limit the purpose of Section 5313 to the reduction of benefits by the Secretary.

[00:00:34] Speaker 01:
This requires no affirmative action by the veteran.

[00:00:37] Speaker 01:
It requires only that the Secretary act on the 61st day of incarceration.

[00:00:44] Speaker 00:
How is the agency to know that it should act?

[00:00:47] Speaker 01:
That they have their own

[00:00:50] Speaker 01:
computer connections with facilities that incarcerate felons the same way they do with Social Security, so that they can cross-check the admission of a veteran to a correctional facility based upon a felony.

[00:01:11] Speaker 01:
This is a process that has been in place with the VA for at least a decade, if not longer, in which they are able to do that

[00:01:20] Speaker 01:
And I believe that this court can reasonably infer that Congress thought that 60 days was a reasonable time for the VA to be able to accomplish that because Congress wrote that the reduction shall not take place until the 61st day.

[00:01:39] Speaker 01:
If the notion was it was to start from the day of incarceration,

[00:01:43] Speaker 01:
then there would be potentially a delay in making that determination.

[00:01:48] Speaker 01:
But the way in which Congress wrote this statute, Congress clearly said that the Secretary would not act to reduce until the 61st day.

[00:01:57] Speaker 00:
It also says that there won't be a reduction until that time.

[00:02:01] Speaker 00:
So anyone who's incarcerated for 60 days or less will not have a reduction at all.

[00:02:06] Speaker 01:
That's correct.

[00:02:08] Speaker 01:
Yes.

[00:02:09] Speaker 01:
Or if they're simply not incarcerated,

[00:02:11] Speaker 01:
You can get a conviction of a felony and not be incarcerated and get probation or some other form of non-incarceration supervision without being incarcerated.

[00:02:24] Speaker 01:
The point of this statute is that once a veteran who is receiving benefits has been incarcerated, then their benefits must be reduced by the secretary.

[00:02:36] Speaker 01:
The entire burden is on the secretary.

[00:02:39] Speaker 01:
There is no burden placed upon the veteran.

[00:02:42] Speaker 00:
The problem I'm having with your interpretation is it just says shall not be paid.

[00:02:47] Speaker 00:
It doesn't talk about putting the burden on one party or the other.

[00:02:50] Speaker 00:
And so I'm struggling with that.

[00:02:55] Speaker 01:
Well, with due respect, Your Honor, the only person mentioned in the statute is the secretary.

[00:03:01] Speaker 01:
It says the secretary shall reduce.

[00:03:04] Speaker 00:
It also says any person who's entitled to compensation but is put in a penal institution should not be paid.

[00:03:13] Speaker 00:
So that's another person who's mentioned before us.

[00:03:16] Speaker 01:
But that is the, if you will, triggering event for the Secretary to act to reduce.

[00:03:22] Speaker 01:
The role of the veteran is not affirmative, but merely passive in the sense that the veteran, if you will, meets the qualification for the statute to have his or her benefits reduced.

[00:03:35] Speaker 03:
What year was the statute first provided for this kind of reduction in benefits?

[00:03:49] Speaker 01:
I believe it was 1980, Your Honor.

[00:03:52] Speaker 03:
If it's only in the last 10 years that the Secretary has developed some sort of computerized connection to make this determination, doesn't it seem unlikely that that's what Congress was counting on for this to happen and why it contemplated, I think you attributed the 60-day period to

[00:04:14] Speaker 03:
to the time it takes to figure this out when you're not told.

[00:04:18] Speaker 03:
Whereas it could, it seems to me, at least as naturally, maybe even more naturally, be understood to mean really short interruptions.

[00:04:26] Speaker 03:
We're not going to ding the veteran.

[00:04:30] Speaker 01:
Well, respectfully, Your Honor, I have no idea when they had got that computer access.

[00:04:36] Speaker 01:
I just know that they have that computer access.

[00:04:40] Speaker 01:
But the point being that the way in which the statute is written

[00:04:43] Speaker 01:
It gave the secretary, as early as 1980, 60 days to determine that.

[00:04:50] Speaker 01:
And obviously, this court can make a reasonable inference from that delay that that was the time frame that Congress thought was a reasonable time frame in order to obtain that information.

[00:05:06] Speaker 01:
Now, I grant you there are a number of things that are missing from this statute that Congress could have written.

[00:05:13] Speaker 01:
But they didn't.

[00:05:15] Speaker 01:
And one of those things is how does this information get conveyed?

[00:05:24] Speaker 04:
The payment can be reduced during the incarceration, but once the incarceration is over, as is the case in this instance, that the secretary can't go back and recover the money that was improperly paid.

[00:05:42] Speaker 01:
That is correct.

[00:05:43] Speaker 04:
What would you say if, for example, the secretary discovered after three months

[00:05:48] Speaker 04:
are four months that the individual is incarcerated.

[00:05:54] Speaker 04:
Under those circumstances, since that would be during the incarceration, could the secretary get the money back for the first two months?

[00:06:02] Speaker 04:
Or once the first check is cut, is that going forever?

[00:06:10] Speaker 01:
I think the statute can reasonably be read to allow the secretary to act any time during the period of incarceration.

[00:06:18] Speaker 01:
I don't think there's anything magical about the 61st day.

[00:06:21] Speaker 04:
And the action would take the form of a recovery of the debt later, for example.

[00:06:27] Speaker 04:
I mean, suppose that the amount paid.

[00:06:30] Speaker 04:
Let's take this case.

[00:06:31] Speaker 04:
Suppose that it was the very last month, and the secretary discovers, oops, I've been paying way too much money.

[00:06:39] Speaker 04:
And the secretary says, OK, I've discovered that there is a

[00:06:43] Speaker 04:
a problem here, we have to get the money back.

[00:06:46] Speaker 04:
Could the Secretary then initiate that recovery proceedings?

[00:06:54] Speaker 01:
I'm not sure that there is anything in the plain language of the statute that gives any clarity to that.

[00:07:03] Speaker 01:
With the notion of when they can act, I think they can act anytime during.

[00:07:09] Speaker 01:
The, if you will, ambiguity is

[00:07:14] Speaker 01:
Are they able to act retroactively within the period that Congress granted authority?

[00:07:21] Speaker 01:
In this case, we're only talking about a retroactive action after the statutory grant of authority had expired.

[00:07:29] Speaker 04:
Now as I understand it, if there's an overpayment, suppose I'm a veteran and one month the VA just cuts a check for $100,000, I'm entitled to $10,000, but they slip a digit and they send me a check for $100,000, they can come back and

[00:07:47] Speaker 04:
If they can't recover the money in some other way, they simply reduce my payments in the next multiple months, right?

[00:07:55] Speaker 04:
Isn't that the way they recover over payments?

[00:07:57] Speaker 04:
That's the way it's done everywhere else in the government.

[00:07:59] Speaker 01:
Well, Your Honor, because of the special nature of this system, there is a general counsel's opinion that I believe is cited in both parties' briefs that specifically says that an administrative error by the government

[00:08:17] Speaker 01:
shall not be subject to an overpayment so long as the veteran didn't do anything to contribute to that.

[00:08:27] Speaker 04:
In other words, the veteran under my hypothetical would be able to keep the $100,000?

[00:08:31] Speaker 01:
Honestly, I've never had that fact set come up.

[00:08:41] Speaker 01:
The fact set that I have come up

[00:08:43] Speaker 01:
against is a slight variant of that hypothetical in which an award of past due benefits was made twice.

[00:08:52] Speaker 01:
In other words, there was a partial grant and an award of past due benefits made, and then a second award of past due benefits made several years later, and they duplicately paid the full term rather than just the succeeding term.

[00:09:09] Speaker 00:
And the veteran was able to keep it?

[00:09:10] Speaker 01:
And in that case, the veteran was not held liable

[00:09:13] Speaker 01:
by the VA because it was an administrative error by the secretary.

[00:09:18] Speaker 00:
What is the statutory provision that says that if there's an administrative error by the secretary, the veteran can retain the payment?

[00:09:26] Speaker 01:
It's cited in the breach.

[00:09:33] Speaker 01:
It's cited in the breach, Your Honor.

[00:09:35] Speaker 01:
Excuse me.

[00:09:42] Speaker 01:
And I don't believe it's a statute.

[00:09:43] Speaker 01:
I believe it's a regulation.

[00:09:47] Speaker 04:
I mean, the waiver is certainly available to the agency in appropriate cases.

[00:09:52] Speaker 01:
Yes, yes.

[00:09:53] Speaker 01:
And that's what we're talking about here is waiver.

[00:09:55] Speaker 01:
Oh, OK.

[00:09:55] Speaker 04:
But that's true across the government, that waiver is always available if it be a hardship or so forth.

[00:10:03] Speaker 04:
But absent the agency's deciding that waiver is appropriate in a particular case,

[00:10:09] Speaker 04:
then presumably, under my hypothetical, they'd be able to get the $100,000 back by just reducing the payments over a course of years.

[00:10:18] Speaker 01:
Yes.

[00:10:19] Speaker 01:
And another point about your hypothetical, Your Honor, is that if the agency recognizes that error quickly, then the agency is perfectly capable of retrieving that money back.

[00:10:28] Speaker 04:
Unless it's been spent on an expensive car or something.

[00:10:32] Speaker 01:
Well, no.

[00:10:32] Speaker 01:
Actually, if it's deposited and most benefits are now directly deposited, then the bank is on the hook.

[00:10:39] Speaker 01:
because the VA can take that deposit out.

[00:10:44] Speaker 01:
And I've had that occasion, but that circumstance happened.

[00:10:47] Speaker 01:
I see that I'm into my rebuttal time.

[00:10:49] Speaker 01:
I'd like to reserve it back.

[00:10:50] Speaker 03:
Thank you.

[00:10:54] Speaker 03:
Mr. Curlin.

[00:11:18] Speaker 02:
My first time with a mask off indoors in a long time.

[00:11:22] Speaker 02:
Good morning, Your Honors.

[00:11:23] Speaker 02:
May it please the court?

[00:11:25] Speaker 02:
The flaw in plaintiffs' inter- excuse me, appellant's interpretation of the statute here is that they continually read language into the statute that simply isn't there.

[00:11:36] Speaker 02:
In particular, appellant over and over and over again claims that the statute includes a time limitation that says that VA can only limit payments

[00:11:48] Speaker 02:
during the incarceration.

[00:11:49] Speaker 02:
A good example of that is page one of the reply brief where the appellant uses the word during multiple, multiple times.

[00:11:54] Speaker 02:
The problem is that word and no words to that effect actually appear in the statute.

[00:12:00] Speaker 02:
Section 5313 contains a general prohibition on paying a veteran disability benefits for a period of incarceration.

[00:12:11] Speaker 02:
It says the veteran shall not be paid

[00:12:14] Speaker 02:
not during, but for the period of incarceration that is after 61 days.

[00:12:20] Speaker 02:
That's the plain language of the statute.

[00:12:22] Speaker 02:
It's a general prohibition.

[00:12:23] Speaker 02:
It contains no time limitation language, nor do any of the other myriad debt collection and offset statutes that one could point to from the mechanics of how this works.

[00:12:34] Speaker 02:
That is only further backed up by, I would say, both common sense and the legislative history.

[00:12:40] Speaker 02:
We can go to either one first.

[00:12:42] Speaker 02:
The legislative history is clear and has been continually recognized, both by this court and the Court of Appeals for Veterans Claims.

[00:12:50] Speaker 02:
One example is Molder.

[00:12:52] Speaker 02:
Another example is the Snyder case that both parties have cited in their briefing.

[00:12:55] Speaker 02:
But it's fairly well-written.

[00:12:58] Speaker 04:
Of course, the Snyder case, I guess, has a footnote in which they said, we're not addressing the particular question that is presented to us.

[00:13:04] Speaker 04:
As I read the footnote, that appeared to be what it's directed to.

[00:13:07] Speaker 02:
Yes, and and and to be clear we don't we don't think that Snyder case is particularly applicable in terms of Controlling this case, but mostly cited by the other side.

[00:13:16] Speaker 02:
We don't see anything in the Snyder case that helps them Okay, but we're not we're not citing it as you know it answers this question, but

[00:13:24] Speaker 02:
I guess it is pertinent, and it does, to a certain degree, make very clear that what was animating Congress was a non-duplicative payment of benefits to veterans while they're incarcerated.

[00:13:36] Speaker 02:
The legislative history indicates that if the state is otherwise maintaining the veteran, Congress did not want taxpayer money spent on

[00:13:45] Speaker 02:
disability benefits the partial intention, which is also to maintain the veteran.

[00:13:51] Speaker 02:
Very, very clear about that.

[00:13:52] Speaker 04:
It doesn't fully answer the question of what the secretary is entitled to do once belatedly the secretary discovers that the money should not have been paid.

[00:14:05] Speaker 02:
Well, respectfully, Your Honor, I think it does answer the question, because that duplicativeness issue does not change whether the Secretary finds out that the veteran is incarcerated during the incarceration or after the incarceration.

[00:14:21] Speaker 02:
And as we've indicated in our briefs, really, and one does not even need to go to the legislative history, because if one were to read the statute in the way that an appellant does, you end up with really an absurd result.

[00:14:34] Speaker 02:
We use the word moral hazard in our brief, but another way to look at it is an absurd result, where any veteran that complies with their duty to inform VA where they are in prison

[00:14:47] Speaker 02:
would have their benefits reduced, but a veteran who either knowingly or unknowingly fails to inform VA that he or she is incarcerated, then would get to keep their benefits.

[00:14:59] Speaker 04:
Is there any other situation that you're aware of in which an overpayment cannot be recovered if it is not discovered promptly?

[00:15:11] Speaker 02:
No.

[00:15:14] Speaker 04:
The example that comes to mind is if a veteran has a certain level of disability and the payments are according to that level, and that level is administratively reduced, and that the payments should have been reduced accordingly.

[00:15:29] Speaker 04:
And they're not.

[00:15:30] Speaker 04:
The VA continues to pay at the higher level, presumably

[00:15:35] Speaker 04:
Is there any reason that the VA could not, even years later, go back and recover that money in one way or another?

[00:15:45] Speaker 02:
No, not that I'm aware of.

[00:15:47] Speaker 02:
The relevant statutes... Statute limitations, I suppose.

[00:15:51] Speaker 02:
There's no statute.

[00:15:52] Speaker 02:
And as we pointed out in our brief, there are several debt collection and overpayment statutes and regulations, both generally applicable to the United States.

[00:15:59] Speaker 04:
But there's no statute of limitations?

[00:16:00] Speaker 02:
None of them contain a statute of limitations.

[00:16:02] Speaker 02:
Except there's one exception that has no applicability here, which is there's a six-year statute of limitations on the United States seeking a money judgment.

[00:16:12] Speaker 02:
So if we were going to come and try to collect a judgment.

[00:16:16] Speaker 04:
But offsets would not be covered by the statute of limitations.

[00:16:18] Speaker 02:
So that's 2514A is money judgment, not applicable here.

[00:16:23] Speaker 02:
Section 2415I, which we've cited in our brief, clearly accepts

[00:16:31] Speaker 04:
So this would be the only situation that you're aware of in the VA or for that matter anywhere in the government in which an overpayment cannot be recovered if it isn't determined during the pendency of the incarceration.

[00:16:49] Speaker 02:
As far as I know, yes.

[00:16:50] Speaker 02:
And I would be remiss if I didn't give you the two statutory sections for offsets, which are 31 USC 3716 is the general one, and then VA's section is 38 USC 5314, the next section after this one.

[00:17:04] Speaker 02:
Both provide for offset.

[00:17:06] Speaker 02:
No statute of limitations.

[00:17:07] Speaker 02:
Limited, however, there is a limiting principle, which is

[00:17:11] Speaker 02:
The offset provision, VA's offset provision 5314, is limited by the ability to seek a waiver in the name of equity and justice.

[00:17:22] Speaker 02:
That's 5302, but it's specifically referenced in the offset provision 5314.

[00:17:28] Speaker 02:
And so that's the limiting principle.

[00:17:29] Speaker 02:
If something really out of left field were to happen, you can always apply for a waiver, and presumably one would have a strong case for getting a waiver.

[00:17:37] Speaker 02:
There is one other issue I wanted to address that came up during the appellant's remarks, which is we would respectfully disagree that there's no duty on the veteran.

[00:17:48] Speaker 02:
There's a well-recognized duty upon veterans set forth in the announcement

[00:17:55] Speaker 02:
long-standing precedent from Heisen v. Brown.

[00:17:58] Speaker 02:
It's known as the Heisen duty.

[00:18:00] Speaker 02:
It's referred to that way in CAVC decisions.

[00:18:03] Speaker 02:
We cited it in our briefs.

[00:18:05] Speaker 02:
I believe page 15 of our brief we talked about Heisen.

[00:18:08] Speaker 02:
A veteran has a duty to notify VA where they can be contacted, but it's not really that limited.

[00:18:14] Speaker 02:
It's really, you know, their duty is to notify the VA of their situation.

[00:18:19] Speaker 03:
What are the enforcement mechanisms for that duty?

[00:18:23] Speaker 02:
There's no enforcement mechanism for that duty beyond the fact that if you don't tell VA, for example, that you're in jail, and they find out after the fact, they may come and retroactively seek to reduce the benefits because they shouldn't have been paid at that time.

[00:18:40] Speaker 02:
I don't know that there's any punishment.

[00:18:44] Speaker 02:
For example, in the Davis decision that we cited at page 15 of the brief, it was a situation where I believe the veteran acclaimed that he could not get correspondence from VA in jail.

[00:18:57] Speaker 02:
But for whatever reason, it was clear that he was still able to contact VA.

[00:19:01] Speaker 02:
And the court said in that case that the heism duty still stands, and it was his responsibility to inform VA that he was in jail.

[00:19:11] Speaker 03:
I suppose that

[00:19:13] Speaker 03:
plays some role in the question of failure of notice, which is maybe what you just described.

[00:19:20] Speaker 03:
That is, violation of the duty to inform VA may actually be a significant response to what would otherwise be a claim of, I never got notice.

[00:19:33] Speaker 03:
Is that right?

[00:19:34] Speaker 02:
That's right.

[00:19:35] Speaker 02:
Well, I think as you started your question, and I see that's not where it ended up, I was hearing there was a failure of notice to VA.

[00:19:43] Speaker 02:
I mean, there may be other cases, but in this case, it's pretty clear that VA had no reason to know that Mr. Gurley was in prison.

[00:19:54] Speaker 02:
He was not in prison for a particularly long period of time, but long enough to satisfy the statutory requirements to have his benefits reduced.

[00:20:01] Speaker 02:
VA employed their computer matching system.

[00:20:05] Speaker 02:
That computer matching system, by the way, we have a footnote on this, does not somehow destroy the hyacinth duty.

[00:20:14] Speaker 02:
And your honors are correct that the statute has been in effect since 1980.

[00:20:18] Speaker 02:
And I don't know for a fact, but it's hard for me to believe that VA had a computer matching system in 1980.

[00:20:25] Speaker 02:
But in other words, they employ their computer matching system.

[00:20:28] Speaker 02:
They found out just a few days after he was released.

[00:20:31] Speaker 02:
But it's really his duty, and it is generally understood to be the veteran's duty in this jurisprudence to inform VA where they are, including if they're incarcerated.

[00:20:41] Speaker 02:
And in this case, there is no indication that VA was given any kind of notice, but ultimately was able to find out and then took appropriate action.

[00:20:51] Speaker 02:
So it seems that it's not the case.

[00:20:52] Speaker 04:
In your view, that wouldn't make any difference, would it?

[00:20:54] Speaker 04:
Would it make a difference if the VA had been told on day one that he was incarcerated and just because of a bureaucratic failure, they didn't stop his checks?

[00:21:07] Speaker 04:
Your position wouldn't be different, would it?

[00:21:09] Speaker 02:
That's not the case before the court.

[00:21:12] Speaker 02:
I'm not sure that our position would be any different.

[00:21:14] Speaker 02:
But I think this is an easier case than that, because this is a clear case where no one told Fiat.

[00:21:24] Speaker 03:
Can I just double check?

[00:21:26] Speaker 03:
The denial of waiver was not appealed.

[00:21:30] Speaker 03:
Was it appealable?

[00:21:33] Speaker 02:
Yes.

[00:21:38] Speaker 02:
So from other cases, other than this one, I recall there may be some limitations on that type of appeal.

[00:21:46] Speaker 02:
But I believe it was appealable.

[00:21:48] Speaker 02:
And in particular, I recall that the board and potentially the Veterans Court as well in this case indicated that they weren't deciding the waiver issue because Mr. Gurley had not appealed that issue.

[00:22:00] Speaker 04:
Well, in other agency cases involving overpayments, we've certainly addressed waiver denials.

[00:22:07] Speaker 04:
that has not infrequently litigated issues.

[00:22:12] Speaker 04:
So one way or another that that issue has come to the court.

[00:22:16] Speaker 02:
Right.

[00:22:17] Speaker 02:
My waiver denial case settled before we got before, Your Honor.

[00:22:20] Speaker 04:
So I don't know whether that's true of the VA, but I have certainly seen it in the context of overpayments for Social Security and the like.

[00:22:29] Speaker 02:
I deduce from the fact that the board took time to reference the fact that he had not appealed the waiver issue, that it was appealable.

[00:22:39] Speaker 03:
If I'm understanding this right, at Appendix 94, the November denial of waivers says, basically, you have appeal rights.

[00:22:51] Speaker 02:
So again, my sense is that it was appealable.

[00:22:56] Speaker 02:
But it is not an issue I've focused deeply on in this case, because it was not an issue.

[00:23:04] Speaker 02:
But I don't have any reason to disagree with that.

[00:23:12] Speaker 02:
If Your Honors don't have any further questions, we respectfully request that this Court affirm the decision of the Court of Appeals for Veterans.

[00:23:19] Speaker 03:
Thank you.

[00:23:24] Speaker 03:
Mr. Carpenter, you have a bit over four minutes.

[00:23:28] Speaker 01:
I'd like to begin with the expansion of the duty noted by the Veterans Court in Heisen.

[00:23:37] Speaker 01:
The duty in HEISN refers only to the duty to inform the VA of the veteran's address.

[00:23:45] Speaker 01:
It's so that it notices and benefits can be sent to the correct address.

[00:23:51] Speaker 01:
It has nothing whatsoever to do with the obligation to notify or to somehow expand that.

[00:23:59] Speaker 01:
It is not vested in any statute or any regulation.

[00:24:04] Speaker 01:
It is something that was judicially created by the Veterans Court, which this court is clearly not bound by.

[00:24:11] Speaker 01:
And clearly, in my view, would be grossly inappropriate to expand that duty when there is no statutory basis that ties directly to the matter at issue here.

[00:24:23] Speaker 01:
And the matter at issue here is whether or not an overpayment was created.

[00:24:29] Speaker 01:
Judge Rice, I'm going to your questions to the government relative to the waiver of overpayment.

[00:24:33] Speaker 01:
That presupposes an overpayment.

[00:24:37] Speaker 01:
The position, Mr. Gurley, is there is no overpayment in this case.

[00:24:42] Speaker 01:
There couldn't be an overpayment in this case.

[00:24:45] Speaker 01:
And therefore, the question of waiver is simply not relevant as a matter of law.

[00:24:51] Speaker 01:
The only way an overpayment gets created, and the government did correctly note, that it appears in the very next section of the statute at 53-14.

[00:25:01] Speaker 01:
And what it says is that the Secretary may deduct the amount of indebtedness of any person who has been determined

[00:25:10] Speaker 01:
to be indebted to the United States by virtue of such person's participation in a benefits program administered by the Secretary.

[00:25:19] Speaker 01:
The Secretary is not administering any benefits program when he is following the mandate of Congress in 5313 to reduce benefits.

[00:25:29] Speaker 04:
Well, now, you're not.

[00:25:31] Speaker 04:
Well, I guess you are.

[00:25:32] Speaker 04:
In your brief, you suggest that the payment of benefits

[00:25:38] Speaker 04:
to Mr. Gurley, setting aside the payment of benefits during the period of incarceration, but the general payment of benefits to Mr. Gurley for his condition, was not a benefit program?

[00:25:50] Speaker 04:
Do I misunderstand the argument you were making in the brief?

[00:25:53] Speaker 01:
It's slightly more nuanced than that, Your Honor.

[00:25:56] Speaker 01:
The point is that, yes, participation in the receipt of compensation is participation in a VA benefit program.

[00:26:05] Speaker 01:
What is not participation is what takes place under 5313, because the benefits aren't being changed.

[00:26:15] Speaker 01:
They're merely being reduced.

[00:26:17] Speaker 01:
There is no change in his right to the benefit that is received prior to entry to incarceration.

[00:26:24] Speaker 01:
And in fact, the statute contemplates that that benefit will be reinstated upon release.

[00:26:31] Speaker 01:
It is merely within the window.

[00:26:33] Speaker 01:
And let's look at it.

[00:26:34] Speaker 04:
But suppose you had a situation, as I was asking government counsel about, in which the level of disability had been reduced from x to y. And the payments, therefore, should have been reduced, but they weren't.

[00:26:55] Speaker 04:
Wouldn't those continued

[00:26:57] Speaker 04:
payments be part of participation in a benefits program and subject therefore to recovery?

[00:27:04] Speaker 01:
No, because the veteran is not required to take any affirmative act.

[00:27:09] Speaker 04:
The language of the... So in my case, and setting aside the incarceration issue, if the veteran is getting much more money than he should be getting according to the level of disability he's been

[00:27:26] Speaker 04:
been accorded.

[00:27:27] Speaker 04:
He's not participating in a benefits program when he's receiving that money and therefore it can't be recovered?

[00:27:33] Speaker 01:
In that scenario, yes, because that's an ongoing payment.

[00:27:38] Speaker 01:
That's what the statute refers to as a continuing payment, a continuing obligation to pay.

[00:27:45] Speaker 01:
If the Secretary has made a mistake in what that amount is

[00:27:50] Speaker 01:
then the veteran may be liable for that if it can be shown that the veteran knew or should have known that he or she was receiving the larger amount of payment.

[00:28:03] Speaker 01:
But that's not the circumstance here.

[00:28:05] Speaker 01:
And what is critical to understand, the government claims that the word during isn't used in the statute.

[00:28:12] Speaker 01:
Well, the words that are used by Congress is, for the period beginning on the 61st day of such incarceration,

[00:28:20] Speaker 01:
and ending on the day that such incarceration ends.

[00:28:25] Speaker 01:
That's during.

[00:28:27] Speaker 01:
There's no other way to interpret that phrase.

[00:28:31] Speaker 01:
That is a defined window, begins on the 61st day, ends on the day of release.

[00:28:38] Speaker 01:
That is the only period of time that is covered here, and it requires specific action by the VA and no action on the part of the veteran.

[00:28:51] Speaker 01:
Thank you very much.

[00:28:51] Speaker 03:
The case is submitted.