The Terminator: The Surreal Reality of Limitations Periods as Applied to Claims of Incarcerated Veterans

Anna Kapellan[1]

Remember the prisoners, as though in prison with them,

and those who are ill-treated,

since you yourselves also are in the body.[2]

Say the word “veteran,” and images of flags waiving in the wind, red carnations on gravestones, the impeccable uniforms of Veterans Day parades, and movie scenes – from Saving Private Ryan to Top Gun: Maverick – come to mind together with proud thoughts about courageous POWs, as in Missing in Action.  And if we hear about a veteran incarcerated here, in the homeland, then we tend to think of John Rambo in First Blood and lament about how misunderstood he was.

Lost in this flood of inspiring images is the cold fact that, per capita, veterans are a markedly more incarcerated segment of our society than the general population.[3]  However, traditional academic debates about society and veterans, or veterans and correctional facilities, keep chewing but never changing the topics of the low transferability of military skills into a civilian occupation, acquired psychiatric disorders that prompt veterans to keep scanning a farmers’ market crowd as if they are flying an F‑16 into an enemy zone, and social adjustment barriers triggered by the contrast between life-depending friendships forged in combat and lukewarm acquaintances made while chatting about vacation plans over an office watercooler.

Meanwhile, the mundane realities of law that are too prosaic to garner clicks, retweets, “likes,” and academic accolades remain overlooked and, as time goes by, become conveniently forgotten as it happens with all forms of inconvenient truths, regardless of their sociopolitical alignment.  However, because life is made not of a handful of triumphal sentences in a resume but of a myriad of day-, hour-, and minute-long hustles that need to be dealt with and lived through, it is the effect of mundane legal provisions that ends up having the most profound impact on veterans, especially if these provisions are imported from the comfy realities of life existing outside correctional facilities into the daily grind of the prison life where nothing is ever easy.

A case in point: the periods of limitations governing matters of the Department of Veterans Affairs (“VA”).  While VA law is vast, the bulk of it is consumed by two types of benefits, one is healthcare and the other is financial assistance.  The latter comes in many forms, but the two most common ones are disability compensations and pensions.[4]  Thus, it is hardly surprising that the bulk of veterans, including those held in confinement, are VA compensation beneficiaries or VA pensioners.  And while all persons held in penal confinement are constitutionally entitled to shelter, food, medical care, clothing, and basic utilities (such as heating during winters and AC during summers, plus water – including hot water – in showers),[5] incarcerated VA beneficiaries remain entitled to some of their monetary VA benefits even if placed behind bars.[6]  Therefore, during the period that runs from the 61st day of incarceration based on a felony conviction to the date of his/her release, a VA compensation beneficiary with a combined disability rating of 20 percent or higher is entitled to receipt of a portion of his/her monthly VA benefits equal to that payable for a 10 percent rating,[7] but the remainder is either forfeited or apportioned to his/her dependents if they succeed at establishing a need for financial assistance.  In sync, during the same portion of the incarceration period based on a felony conviction, a VA compensation beneficiary with a 10 percent combined rating continues to receive his/her VA benefits, but only in the amount equal to half of that payable for a 10 percent rating outside prison walls.[8]  Moreover, no VA pension is paid to incarcerated pensioners during the same period regardless of whether they are convicted of a felony or a misdemeanor.  Hence, after two months of a veteran’s incarceration, his/her stream of VA income dries up or gets dramatically reduced, and it stays this way until (s)he is finally released either into a halfway house or the “I-am-no-longer-in-confinement” life.[9]

That said, if veterans fail to notify VA of their conviction-based incarcerations,[10] VA – unaware of these developments for months and even years – continues disbursing taxpayer-supplied funds to incarcerated veterans who are not entitled to these monies either at all or in the amount disbursed until VA finally gets notified of these convictions and proceeds to first charging veterans with overpayments and then trying to recoup these funds.[11]  The process of charging an overpayment consists of four steps.  First, a VA regional office (“RO”) mails a veteran a proposal notice stating the relevant facts and law and invites him/her to reply.  Once the veteran replies (or the time to reply expires), the RO mails the veteran a notice of final action that – unless the veteran’s reply showed that no benefit-reducing incarceration had taken place – charges the veteran with an overpayment.  With that, the RO calculates the amount overpaid and forwards it to the Debt Management Center (“DMC”), the bearer of bad news and a subagency acting as VA’s agent for collection.  The DMC then mails the veteran a demand letter stating the amount and the proposed method of recoupment,[12] plus informing the veteran of his/her right to seek a waiver of such a recoupment by filing a waiver claim within 180 days from the date of the demand letter.[13]

However, these simple due process steps begin to malfunction once they are imported into the realities of the prison life.  To start, an incarcerated veteran may not even know that (s)he is being overpaid.  Indeed, even if a veteran: (a) duly notified the RO of his/her conviction-based confinement; and (b) requested that his/her monthly VA benefits would be deposited on the veteran’s inmate’s trust account (“ITA”) instead of the bank where VA used to make deposits before the veteran’s incarceration, and VA complies with his/her request, the veteran might end up believing that the amount of his/her monthly VA benefits was reduced even if it was not.  This is so because veterans tend to distill the fact of reduction by mentally comparing the amounts of monthly VA benefits they used to receive before incarceration to the amounts they receive in prison, and construe any “it-used-to-be-more-but-now-it-is-less” as a sign of a proper VA action.

Amplifying this problem is the fact that many correctional facilities – driven by valid penological concerns – do not deposit the entirety of funds sent to inmates’ ITAs from the outside.  The rationale of this practice is two-fold.  To start, the presence of hundreds of dollars on an inmate’s ITA will sooner or later (and, usually, very soon) become known to the prison’s population, leaving the inmate at risk of first extortion and then physical violence if (s)he refuses to make purchases and “gift” these purchases to violent inmates, in-prison gang groups, and corrupt prison officials.  Thus, many correctional facilities deposit only a fraction of the funds sent to an inmate’s ITA to enable these inmates’ commissary purchases of hygiene items and their payments for visits to the prison’s infirmary.  The remainder is usually put on an escrow so that these funds would accumulate and be disbursed to the inmate upon his/her release from confinement to ensure that (s)he is not penniless and sleeping on the street on his/her first day of freedom because such freedom often prompts released prisoners to commit new crimes,[14] leaving society worse off and the inmates back at square one.

That said, since discussions of escrow accounts are highly protected and require appointments with senior prison officials having very limited “open door” hours, many veterans simply presume that the smaller deposits on their ITAs means that VA downwardly adjusted their VA benefits based on incarceration.  Therefore, these veterans do not know that they are being overpaid.  A fortiori, if a veteran notified the RO of his/her conviction but did not request that VA funds would be deposited to his/her ITA, VA continues depositing these funds into the veteran’s bank account, and the veteran might not know for years if the requested downward adjustment had taken place unless (s)he has a friend or family member monitoring his/her bank account without stealing from these funds.[15]  This is so because inmates have no access to their bank accounts since: (a) inmates rarely risk requesting their bank statements to be forwarded to prisons (given that banks tend to limit such customers’ credit lines, plus prison officers examining the contents of mail delivered to inmates might be tempted to extort funds from inmates with substantial savings “outside”);  (b) an inmate’s possession of a cellphone (a device that many use to manage bank accounts) qualifies as a highest-level disciplinary infraction since, in addition to checking a bank account, cellphones could be used for a panoply of illegal activities, like organizing an escape, coordinating activities with an external gang, arranging for contraband, etc.; and (c) computers available in prison law libraries are programmed to block access to secure websites, including bank websites, because prisons have a legitimate penological interest in ensuring that inmates are unable to extort – usually, through violence – other inmates’ personal information, including bank passwords, and commit crimes online, e.g., by transferring the victim’s savings to a third-party co-conspirator’s bank account.

Moreover, even if an incarcerated veteran becomes aware of being overpaid by VA and expects to receive letters from the RO/DMC, such letters might never come, even if the RO/DMC mails them.  This is so because any envelope sent to an inmate is required to include not only the prison address and the addressee’s first and last names, but also the addressee’s Department of Corrections (“DOC”) number.[16]  If his/her DOC number is missing, the prison officials cannot deliver the letter since prison officers are required to open all letters in the presence of inmates-addressees because, on the one hand, the officers are obligated to examine the contents of each letter to make sure it does not contain contraband or any other material that might negatively affect the prison’s operations, but – on the other hand – inmates are entitled to know if any portion of the mailings addressed to them was removed.  Since prison officials do not know which inmate to summon for the process of opening of an envelope that lacks a DOC number matching the inmate’s name on the envelope, prison officials end up delivering such letters into a garbage can.

The rationale underlying the actions of prison officials is prudential: different inmates held at the same prison might have identical first and last names, plus many inmates have multiple aliases that – contrary to the impression created by pop culture that tends to give criminals aliases like “Alligator,” “Vendetta,” “Butcher,” and “Batman” – usually present combinations of popular or rare first and last names (since such aliases help criminals to confuse and evade law enforcement), plus prisons have no staff or time to conduct onomastic studies.  Moreover, since prison officials have no ability to decline acceptance of letters lacking DOC numbers (because the U.S. Postal Service, having delivered these letters to the correctional facilities stated on the envelopes, has no authority to take them back as undeliverable), and prisons have no funds allocated for sending these letters back to VA.  A fortiori, prison officials do not forward prisoners’ mail if inmates are transferred to other correctional facilities while these inmates’ VA mail is in transit, or if inmates were moved to a different facility a while ago but did not notify VA of their change in address.  This purely logistical problem is surprisingly widespread since VA prints a beneficiary’s personal identifiable information (“PII”) that VA is obligated to protect in the top right corner of its notices, and VA officers – not well-versed in prison realities – tend to perceive DOC numbers as PII and, erring on the side of safety, include DOC numbers in the PII printed in the top right corner of VA notices, thus ensuring that these DOC numbers would not be seen through the cut-out windows of VA envelopes.

Furthermore, if a veteran-inmate somehow receives a letter from the RO/DMC about his/her overpayment, the only way the veteran may contact VA is by hard-copy mail.  True, to facilitate veterans’ ease of contact, VA provides a panoply of toll-free numbers so that a veteran could call and sort his/her inquiries out expeditiously.  However, prisoners have no constitutional right to telephonic communications,[17] meaning that their access to a telephone qualifies as a privilege that might be taken away based on disciplinary infractions, meaning that a veteran-inmate might have no access to a telephone for months.  Plus, prisoners’ telephonic communications are required to be monitored to ensure that the content does not implicate an illegal matter, e.g., gang activities, escape plans, riots, contraband, extortion, corruption of prison officers, etc.  Correspondingly, inmates must purchase telephone cards with their ITA accounts and use the cards or dial-in their ITA account numbers prior to dialing the phone number they want to call since all inmates have to use prisons’ public phones that necessarily charge them a fee for their calls.

Since all phone calls must be charged, plus prison officers have a vested interest in ensuring that inmates do not make endless toll-free calls harassing government entities, toll-free numbers are automatically blocked on all public phones installed in prisons.  Therefore, veteran-inmates end up being unable to call VA because all VA external phone numbers are toll-free, while VA officials keep sending such veterans letters insisting that these veterans would call them.[18] With that, communications between VA and incarcerated veterans quickly turn into the scene in Groundhog Day where Bill Murray’s character Phil Connors tells a psychiatrist that he keeps reliving the same day over and over again, unable to move on to “tomorrow,” and the psychiatrist responds, “I think we should meet again.  How’s tomorrow for you?” prompting Phil to begin punching himself in the head through a pillow.

Left with the sole option of responding to ROs and the DMC by hard-copy mail, veterans-inmates face additional challenges because – even if they are writing to the RO/DMC about legal actions that VA is taking against them – such mailings cannot qualify as prisoners’ “legal mail.”  Indeed, within the realm of constitutional law, the phrase “legal mail” is a term of art, and only mailings raising inmates’ habeas claims, i.e., challenges to convictions or periods of confinement, or civil rights claims challenging conditions of confinement qualify as constitutionally protected legal mail[19] as to which prison officials are obligated to provide indigent inmates with supplies, such as paper and writing instruments, i.e. pens or pencils, plus envelopes with prepaid postage.  Thus, an incarcerated veteran wishing to write to VA must find the means to purchase postage and supplies on his/her own, all while prisoners make nominal wages at prisons if they are strong enough to work.[20]  Moreover, even if an inmate purchases the required supplies and postage and prepares his/her letter for mailing to VA, the process of mailing from a prison to the “outside” world, including to VA, is anything but swift since inmates cannot just lick an envelope, seal it, affix a stamp, and drop it into a mailbox.

Rather, inmates are obligated to deliver their letters unsealed to a correctional officer collecting mail.  And while such collections are done five days a week as to the general prison population, these collections are rarely daily as to the mail from prisoners held at infirmaries or “SHUs,” that is, special housing units designated for inmates who committed disciplinary infractions.  Further, once each round of inmates’ mail is collected by prison officials, the content of each letter must be examined to ensure that no letter includes “code” words reflecting the sender’s involvement in a gang activity,[21] or a request for contraband, an escape plan, a confession about an unsolved crime, a statement reflective of inmate-on-inmate violence, an anticipated prison riot, a threat to or a bribe of a prison officer, etc.  Only after the letters are checked for their content, the inmates’ envelopes finally get sealed and handed to U.S. Postal officers for mailing to the addressees, including VA.  Since prisons are understaffed, plagued by frequent workforce rotations requiring training of new employees, and mail duties are not on the forefront of prison officials’ agenda (that, typically, focuses on security, violence, drugs, discipline, visitation, medical care, utilities, budgetary, and food safety concerns), the length of the period from the date when an inmate prepared his/her letter to VA for handing it to prison officials to the date when an RO or the DMC may receive this letter might take not just weeks but even months.

To add to the above-noted problems, prison officers do not have either time or reason to check whether the weight of each mailing submitted by an inmate corresponds to the value of stamps (s)he affixed.  However – since inmates are prohibited from having access to currency (and an inmate’s possession of any currency, even a dollar, qualifies as one of the most serious disciplinary infractions), prisoners use their own de facto currency to facilitate transactions between inmates.  And while each prison population might circulate its unique de facto currency, i.e., the types of goods that inmates may legally own while in prison but could also use as units of value facilitating transactions between inmates, virtually all prison populations in the United States utilize cigarettes and postal stamps as de facto currencies (because these items are easy to resell at only a moderate discount upon release from a prison) – inmates tend to use stamps frugally, often affixing just one to a letter containing three or more pages.  Such overstuffed mailings are often returned by the U.S. Postal Service for insufficiency of postage, causing the inmates to lose time, plus the stamp used necessarily becomes cancelled during the letter’s round trip into nowhere.

Meanwhile, the periods of limitations keep ticking away.  Notably, in an action implicating an overpayment of VA funds, there are three separate periods of limitations created by statutes and regulations, plus one created by the holding of the U.S. Court of Appeals for Veterans Claims (“CAVC”) in Schaper v. Derwinski.[22]  Specifically, a challenge to a debt arising from a VA overpayment may encompass up to three claims: a challenge to the conceptual propriety of the creation of the overpayment, a challenge to the validity of amount of the overpayment, and a claim for a waiver of the recoupment of the resulting debt.[23]  A challenge to the propriety of the creation is timely if an RO receives such a challenge within one year from the date of its final action notice.  A challenge to the validity of the amount is timely if it is received by the RO/DMC within a year from the date of the DMC’s demand letter.[24]  And a claim for a waiver of the recoupment of the resulting debt is timely if it is received by the RO/DMC within 180 days from the demand letter.  Further, if, for instance, it took the DMC one year from the date of the RO’s final action notice to issue a demand letter, but the debtor timely requested a waiver and, in addition, incorporated challenges to the propriety of the creation of his/her overpayment into the debtor’s waiver claim, then the debtor’s propriety-of-the-creation and validity-of-the-amount challenges still qualify as timely because neither VA nor the appellate tribunals having jurisdiction over VA matters may reach the waiver claim without resolving the creation- and amount-related challenges.[25]

Having to juggle these limitations periods within the realities of the prison life, many veterans end up with the RO/DMC receiving their mailings after the periods of limitations created by statutes, regulations, and the holding of Schaper has expired.  Further, while – under the relaxed provisions of the Appeals Modernization Act – the bulk of claims where veterans seek to obtain VA benefits get addressed on the merits no matter when filed, leaving only the aspect of the effective date of the award in dispute, incarcerated veterans’ overpayment-related claims are habitually dismissed as untimely without analyzing the fact that the senders are held in confinement because neither VA nor the tribunals having appellate jurisdiction over VA have any degree of clarity about the qualitative distinction between the concepts of a timely filing of an incarcerated litigant’s claim and that of equitable tolling.[26]

This unfortunate confusion arises from a quarter-century-old decision of the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) in Bailey v. West.[27]  There, VA denied a veteran’s claim for service connection as to his lung disorder, and the Board affirmed the denial.  The veteran then prepared his appeal to the Court pro se and hand-delivered it to a counselor associated with his local RO in December 1996, that is, 117 days from the date of the notice of the Board’s decision, i.e., just three days before his 120-day period to appeal to the Court expired.  However, while the veteran was assured that his pro se appeal would reach the Court, VA never forwarded his submission to the Court and, instead, notified the veteran in January 1997 that his 120-day period to appeal to the Court had expired.  When the veteran appealed that finding to the Board, the Board dismissed his appeal paving way for the Court to also dismiss his appeal for lack of jurisdiction.  On these facts, the veteran appealed to the Federal Circuit, which ruled that he was entitled to equitable tolling under 38 U.S.C. § 7266(a).  However, discussing the consideration applicable to equitable tolling, then-Chief Judge Mayer injected, in passing, two sentences and a citation into his review of the Supreme Court caselaw on equitable tolling.[28]  These two sentences and a citation read,

The Supreme Court has also recognized a form of equitable tolling where a petitioner cannot control or oversee delivery to and receipt by the court clerk.  See, e.g., Houston v. Lack, 487 U.S. 266 (1988) (prisoner’s delivery of notice of appeal to prison authority deemed filed, though statute requires receipt by the clerk).  Though veterans are in a better position to ensure receipt by a court clerk, the statutes and department rules and regulations lead them to justifiable reliance on the government in a way far more deserving of equitable tolling than convicted felons.[29]

Judge Mayer’s passim observation, however, somehow ended up marrying Houston v. Lack to the doctrine of equitable tolling in the minds of the Court, the Board, and VA.  However, Houston, one of the most influential opinions within the subarea of constitutional law known as the law of prisoners’ litigation, has nothing to do with equity.  Rather, Houston created the so‑called federal prisoner mailbox rule that applies to all legal submissions made by pretrial and alien detainees, incarcerated convicted prisoners, and persons held in civil commitment regardless of whether their submissions are mailed to a court or a quasi-judicial tribunal, and whether these submissions address a trial-level dispute or an appeal.  Specifically, Houston’s “federal ‘prisoner mailbox rule’ provides that a document is deemed filed on the date it is given to prison officials for mailing” to an adjudicatory tribunal, provided that the sender was an inmate, and the document is eventually received by the tribunal, even if such receipt takes place years later.[30]  Moreover, under the Federal Rules of Appellate Procedure, the mailbox rule aids an inmate if (s)he provides evidence that his/her claim was “deposited in the institution’s internal mail system on or before the last day for filing and . . . that postage was prepaid,”[31] meaning that, “[a]bsent evidence to the contrary,” an addressee-tribunal should presume “that a prisoner delivered a filing to prison authorities on the date that [(s)]he signed it.”[32]

Therefore, a veteran-inmate should be entitled to a finding of timeliness of his/her submission if the submission is signed and dated prior to the expiration of the applicable limitations period, plus the record before the adjudicating tribunal lacks evidence that the submission was pre-dated.  This entitlement should be recognized as a right based on the law of the land, not a charitable exercise in equitable tolling.  After all, while veterans are serving penal terms, their claims deserve the same respect as claims of any other VA litigant, and the Court has stressed that “those who adjudicate claims of incarcerated veterans [should make] certain that they tailor their assistance to the peculiar circumstances of confinement [because incarcerated litigants] are entitled to the same care and consideration given to their fellow veterans.”[33]  Simply put, it is time for the Court to unambiguously correct its caselaw – and for VA to refine its regulations – in accord with the Supreme Court precedent crafted with an understanding that even a petty legal provision may transform into a Terminator once it enters the warped reality of the prison life.


[1] The author would like to thank Anna Beavers, Executive Editor of the Mississippi Law Journal and member of the class of 2024, for invaluable editing, as well as Jonathan Hager, a Veterans Law Judge and a former Public Defender for the State of New York, for generously sharing his encyclopedic knowledge of VA caselaw and for inspirationally unwavering kindness and compassion given to everyone who seeks his help.

[2] Hebrews 13:3.

[3] Veterans comprise about eight percent of persons in custody in the United States.  See, e.g., Commission to Study Why So Many Veterans End Up in Jail, Prison, Nat’l Crim. Justice Assoc., (Aug. 23, 2022),  This is already higher than the 6.4% of veterans in the U.S. population overall, see, e.g., Who Are America’s Veterans?, U.S. News & World Report (Nov. 11, 2022, 1:21 PM),, and the actual percentage of veterans in custody is even higher by about 20% since one-fifth of the U.S. population are unemancipated minors not subject to confinement at the facilities where veterans, who are emancipated by definition, could be confined, see, e.g., Statistical Briefing Book, Off. of Juv. Just. & Delinq. Prevention (Oct. 13, 2021),

[4] A disability compensation could be defined, in the simplest of terms, as a recurrent benefit disbursed to a veteran discharged from service under conditions other than dishonorable and compensates him/her for impairments in earning capacity caused by diseases/injuries incurred or aggravated in active duty, provided that such diseases/injuries were not direct results of his/her willful misconduct or abuse of alcohol/controlled substances.  See 38 U.S.C. §§ 101(2), 1110, 1114, 1131 (2022); 38 C.F.R. §§ 3.4, 3.12 (2022).  In contrast, pensions are recurrent needs-based benefits paid to veterans who served during a period of war and have low income, insubstantial assets, and are either totally and permanently disabled or 65 years old or older.  See 38 C.F.R. §§ 3.271, 3.272, 3.274, 3.275, 3.276, 3.278, 3.279 (2022).

[5] See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Rhodes v. Chapman, 452 U.S. 337, 349 (1981).

[6] 38 U.S.C. § 5313(a)(1) (2022); 38 U.S.C. § 1505 (2022).

[7] 38 U.S.C. § 5313(a)(1)(A).

[8] 38 U.S.C. § 5313(a)(1)(B).

[9] 38 U.S.C. § 1505 (2022).

[10] Employees of the VA medical facilities, i.e., facilities operated by the Veterans Health Services, are neither authorized to accept nor expected to act on notices about changes in veterans’ circumstances that have a financial impact: such actions could be performed only by employees of the Veterans Benefits Services, i.e., of a VA Regional Office/intake center.  See, e.g., [Redacted], No. 191114-149651, BVA A22-012719 (B.V.A. July 7, 2022).

[11] VA is obligated to recoup overpayment debts aggressively.  See 38 C.F.R. § 1.910 (2022).

[12] VA executes recoupment through incremental withholdings from debtors’ future monetary VA benefits, if any, see 38 U.C.S. § 5314 (2022); 38 C.F.R. § 1.912(a) (2022), or by garnishing debtors’ wages, SSA or SSI benefits, tax refunds, and/or by placing liens on private property, commencing foreclosures of real estate, etc., if no future VA benefits appear forthcoming at the time of recoupment, see 38 C.F.R. §§ 1.911, 1.917, 1.922, 1.950 (2022).

[13] See 38 C.F.R. § 1.911(d) (2022); accord Veterans Benefits and Transition Act of 2018, Pub. L. No. 115-407, § 504(b), 132 Stat. 5368 (2018).

[14] Cf. Shawn Liu, Paving Paths to Reentry for Homeless Veterans, Dep’t Vet. Affairs, Homeless Program (Apr. 18, 2023).

[15] But see Shephard v. Shinseki, 26 Vet. App. 159 (2013) (a veteran’s ex-husband took advantage of his access to the joint bank account he held with an incarcerated veteran, withdrew over $63,000 in her VA benefits from the account, and then spent the funds and declared bankruptcy, rendering him judgment proof, while the veteran ended up being responsible for the entire debt).

[16] See, e.g., Christopher Zoukis, How DOC Inmate Number Search Works, Zoukis Consulting Group (June 9, 2023, 2:31 AM), [].

[17] See, e.g., Brown v. Sadowski, No. 08-4489, 2009 U.S. Dist. LEXIS 10259, 2019 WL 248916, at *4 (D.N.J. Feb. 9, 2009) (collecting cases).

[18] See, e.g., [Redacted], No. 18-43009A, 2022 BVA LEXIS 69715, at *13-14 (B.V.A. Sep. 14, 2022).

[19] See, e.g., Bounds v. Smith, 430 U.S. 817, 822 (1977).

[20] See, e.g., Dana DiFilippo, Inflation Hits Inmates’ Wallets, Even as Their Wages Have Flatlined, NJ Monitor (Sep. 28, 2022, 7:10 AM), https://new, (“[Inmates’] pay ranges from $1 to $7 a day, but most positions pay $1 to $3 a day.”).

[21] See, e.g., Harris v. Ricci, No. 08-6282, 2014 U.S. Dist. LEXIS 94996, at *2-3 (D.N.J. 2014) (discussing “code” words).

[22] Bailey v. West, 1 Vet. App. 430, 437 (1991).

[23] Johnson v. Wilkie, No. 19-5789, 2020 U.S. App. Vet. Claims LEXIS 1205, at *5 (Ct. Vet. App. June 25, 2020).

[24] Under AMA, an appeal might be adjudicated by the U.S. Board of Veterans Appeals (“Board”) if no further review by VA is requested by the debtor, see AMA Decision Review Selection Flowchart, Dep’t Vet. Affairs, available at, but the document requesting appellate review should be mailed to the agency of original jurisdiction (“AOJ”), like an RO or the DMC, and then AOJs certify those appeals to the Board.

[25] But see [Redacted], No. 18-43 009A, 2022 BVA LEXIS 69715 (Sep. 14, 2022) (the wife of an incarcerated veteran kept withdrawing funds that VA kept depositing on his bank account and, upon giving these funds to their daughter, kept lying to the veteran that VA had reduced the amount of his benefits based on the veteran’s incarceration).

[26] “As a general matter, equitable tolling pauses the running of . . . a statute of limitations when a litigant has pursued his[/her] rights diligently but some extraordinary circumstance prevents him[/her] from bringing a timely action.”  Lozano v. Montoya Alvarez, 571 U.S. 1 (2014); see also Checo v. Shinseki, 748 F.3d 1373, 1379-80 (Fed. Cir. 2014).

[27] 160 F.3d 1360 (Fed Cir. 1998).

[28] See id. at 1367.

[29] See id.

[30] See, e.g., Pabon v. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir. 2011).

[31] Fed. R. App. P. 25(a)(2)(A)(iii).

[32] Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014).

[33] Bolton v. Brown, 8 Vet. App. 185, 191 (Ct. Vet. App. 1995).



Anna Kapellan is Counsel with the U.S. Board of Veterans’ Appeals, Specialty Case Team, Overpayment and Waiver Group. Anna holds a Magna Cum Laude J.D. from Brooklyn Law School, LL.M. from New York University School of Law, a double-major Honors M.B.A from Baruch College, Zicklin School of Business, plus she did a Ph.D. law-and-economics research at the University of Leicester, U.K.  Prior to her employment with the Board of Veterans’ Appeals, Anna was an Attorney Adviser with the U.S. Merit System Protection Board, an Assistant Township Attorney with the Township of Montclair, NJ, a Staff Attorney with the U.S. District Court for the District of New Jersey, a Mediator with the U.S. Equal Employment Opportunity Commission, Counsel with the European Union Commission, a litigation associate with Proskauer Rose, LLP, and a law clerk to the late Hon. Nicholas Tsoucalas, the U.S. Court of International Trade.