Wilson v. Gibson, No. 13-7037 (Fed. Cir. 2014)
Annotate this CaseWilson served in the Navy 1986-1990 and again 1992-1994. He was given a 70% disability rating for several service-connected physical conditions. In 2001, Wilson was found guilty of attempted first degree murder and aggravated battery with a firearm and was sentenced to concurrent life terms. His convictions and sentences were affirmed. Wilson then pursued unsuccessful state and federal collateral attacks. For veterans who have service-connected disabilities rated at 20% or more and who are incarcerated for than 60 days for a felony,” 38 U.S.C. 5313(a)(1) requires reduction in compensation to the level of 10% disability, effective the 61st day of incarceration. The VA informed Wilson by letter that his rate of compensation would be reduced to 10%, effective back to December 20, 2001 and requested refund of overpayment of $15,464.50. The Regional Office Committee on Waivers and Compromises denied a waiver. Wilson was also denied a “total disability evaluation based on individual unemployability due to service-connected disabilities” (TDIU) rating on the basis that his unemployability was due to his incarceration The Board of Veterans’ Appeals applied the multi-factor test from 38 C.F.R. 1.965 to determine that recovery of the overpayment would not be against “equity and good conscience” and agreed that Wilson was not entitled to a TDIU rating. The Veterans Court affirmed. The Federal Circuit upheld the decision.
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