Wednesday, February 27, 2013

Shephard v. Shinseki

Shephard v. Shinseki, docket no. 11-2074 (Vet. App. Feb. 27, 2013) This case involves the question of whether a veteran is entitled to recoup disability benefits that were withheld while the veteran was incarcerated. When a veteran who is receiving monthly VA benefits is incarcerated for a felony conviction, a portion of benefits is withheld starting on the 61st day of incarceration. 38 U.S.C. § 5313(A)(1). Upon release, the veteran’s full benefits can resume. 38 C.F.R. § 3.665(i). If the veteran’s conviction is overturned, the amount withheld can be restored. 38 C.F.R. § 3.665(m). But unless the conviction is overturned, the veteran is not entitled to receive the amount withheld during incarceration. The Court held that the governing statute “contains neither an implicit nor explicit command to pay, upon a veteran’s release from incarceration, those sums previously reduced.”

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