United States Court of Appeals 

for the Federal Circuit ______________________ 

JOHN D. WILSON, JR.,

Claimant-Appellant,

v.

SLOAN D. GIBSON, 

Acting Secretary of Veteran Affairs, 

Respondent-Appellee.

______________________ 

2013-7037

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 11-0165, Judge Lawrence B. 

Hagel.

______________________ 

Decided: June 10, 2014

______________________ 

JOHN D. WILSON, JR., of Zephyr Hills, Florida, pro se. 

KATY M. BARTELMA, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent-appellee. 

With her on the brief were STUART F. DELERY, Principal 

Deputy Assistant Attorney General, and JEANNE E.

DAVIDSON, Director. Of counsel were MICHAEL J.

TIMINSKI, Deputy Assistant General Counsel, and 

RACHAEL T. BRANT, Attorney, United States Department 

of Veteran Affairs, of Washington, DC.
2 WILSON v. GIBSON

______________________ 

Before MOORE, CLEVENGER, and O’MALLEY,

Circuit Judges.

CLEVENGER, Circuit Judge. 

John David Wilson, Jr. appeals from the final decision 

of the United States Court of Appeals for Veterans Claims 

(“Veterans Court”) affirming the decision of the Board of 

Veterans’ Appeals (“Board”) denying him a waiver of 

compensation overpayment in the amount of $15,464.50. 

Wilson v. Shinseki, No. 11-0165 (Vet. App. Aug. 28, 2012)

(“Mem. Op.”). The Veterans Court upheld the validity of 

the overpayment debt and found no clear error in the 

Board’s findings that Mr. Wilson did not qualify for waiver. Id. at 6. 

Mr. Wilson timely appealed to this court. He presents 

three issues. First, he challenges the validity of the overpayment debt. Second, he contends that the Board erred 

in denying him waiver of overpayment. And third, he 

presents a clear and unmistakable error claim for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities 

(“TDIU”). For the reasons set forth below, we affirm the 

decision of the Veterans Court on the first issue and 

dismiss for want of jurisdiction on the other two issues.

I 

Mr. Wilson served the Navy honorably from January 

1986 to January 1990 and again from January 1992 to 

March 1994. He was given a 70% disability rating for 

several service-connected physical conditions.

On June 27, 2001, Mr. Wilson was found guilty by a 

jury in the 13th Judicial Circuit Court of Florida of two 

felonies: attempted first degree murder with a firearm 

and aggravated battery with a firearm. He was sentenced 

to two concurrent life sentences on October 10, 2001, at 
WILSON v. GIBSON 3

which time he was incarcerated. He began to serve his 

sentences on October 19, 2001. The Second District Court 

of Appeal of Florida affirmed per curiam Wilson’s convictions and sentences on July 9, 2003. Wilson v. State, No. 

2D01-4868, 853 So.2d 424 (Fla. Dist. Ct. App. 2003). The 

mandate issued on September 10, 2003.

Mr. Wilson then pursued collateral attacks against 

his conviction. On February 1, 2005, the Florida Second 

District Court of Appeal denied his state petition for writ 

of habeas corpus, Wilson v. State, No. 2D04-3354, 896 

So.2d 761 (Fla. Dist. Ct. App. 2005), and on February 16, 

2005, the Florida Supreme Court declined review. Wilson 

v. State, No. SC05-274, 895 So.2d 1068 (Fla. 2005). Petitioning the United States District Court for the Middle 

District of Florida fared no better. Wilson v. Sec’y, Dep’t of 

Corr., No. 8:07-cv-2185, 2009 WL 2900716 (M.D. Fla. 

Sept. 4, 2009). The United States Supreme Court ultimately denied his petition for certiorari on October 4,

2010. Wilson v. McNeil, 131 S. Ct. 249 (2010).

For veterans who have service-connected disabilities

rated at 20% or more and who are “incarcerated . . . for a 

period in excess of sixty days for conviction of a felony,” 38 

U.S.C. § 5313(a)(1) requires a reduction in compensation

payment to the level of 10% disability, effective “the sixtyfirst day of such incarceration.” 38 U.S.C. §§ 1114(a),

5313(a)(1)(A). Mr. Wilson notified the Department of 

Veterans Affairs (“Agency”) that he was incarcerated on 

April 7, 2000, before he was sentenced. The Agency did 

not receive notification of his actual conviction of a felony 

until February of 2002. 

On February 26, 2002, the Agency informed Mr. Wilson by letter that his rate of compensation would be 

reduced from 70% to 10%, effective back to December 20, 

2001, the sixty-first day of his incarceration dating from 

October 19, 2001. It then sought overpayment in the 

amount of $15,464.50. Mr. Wilson applied for a waiver of 
4 WILSON v. GIBSON

the overpayment from the Regional Office Committee on 

Waivers and Compromises, which was denied.

In addition, on February 27, 2012, Mr. Wilson was 

denied an application for a TDIU rating by the Regional 

Office on the basis that his unemployability was due to 

his incarceration and not due to disability.

II

Mr. Wilson appealed to the Board, seeking waiver of 

the overpayment and a TDIU rating. In re Wilson, No. 03-

28 094 (Bd. Vet. App. Sept. 17, 2007) (“First Board Op.”). 

The Board applied the multi-factor test set forth in 38 

C.F.R. § 1.965 to determine that the recovery of the 

overpayment debt would not be against “equity and good 

conscience.” Id. at 9-11. Accordingly, it denied waiver of 

overpayment. The Board further found that Mr. Wilson 

was not entitled to a TDIU rating because of evidence 

that “employment was realistic and feasible” before his 

incarceration and that “[his] unemployment is due to 

incarceration and is not the result of his service-connected 

disabilities.” Id. at 7.

Mr. Wilson challenged the Board’s decision at the 

Veterans Court on the waiver of overpayment issue and 

his TDIU claim. By joint motion, with Mr. Wilson represented by counsel, the parties sought remand to the Board 

to take further evidence on the issue of undue hardship 

regarding the waiver issue. The parties however expressly 

asked the Veterans Court “not to disturb” the part of the 

Board decision that denied Mr. Wilson’s TDIU claim. On 

November 18, 2009, the Veterans Court entered an order 

remanding the case to the Board according to the joint 

remand request and dismissing the TDIU claim. On 

remand, the Board considered all the evidence and again 

denied waiver of overpayment. In re Wilson, No. 03-28 

094 (Bd. Vet. App. Dec. 10, 2010).
WILSON v. GIBSON 5

Mr. Wilson again appealed to the Veterans Court. He 

challenged the validity of the overpayment debt on the 

ground that his conviction of a felony for which he was 

incarcerated should not be deemed to occur until the 

conviction is absolutely final, that is, the date upon which 

he was denied review of the conviction by the United 

States Supreme Court, which occurred on October 4, 

2010. His challenge raised a question of interpretation of 

38 U.S.C. § 5313, the statute pursuant to which his compensation benefits were reduced on account of his incarceration for conviction of a felony. According to Mr. 

Wilson’s view of the statute, his compensation could not 

be reduced until his conviction was final, and consequently he is entitled to retain the compensation payments 

subject to the claim of overpayment. Mr. Wilson also 

challenged the Board’s refusal to grant him a waiver of 

the overpayment debt.

In a single judge memorandum, the Veterans Court 

affirmed the conclusions of the Board. Mem. Op. at 1. The 

Veterans Court first concluded that the debt was valid. It 

stated that Mr. Wilson’s status under § 5313(a)(1) as 

“incarcerated . . . for conviction of a felony” is “without 

regard to whether [he] has appealed his conviction.” Id. at 

5. The Veterans Court also held that there was no clear 

error in the factual findings of the Board with regard to 

the denial of waiver.

Mr. Wilson subsequently sought reconsideration of 

the adverse decision of the single judge or, in the alternative, a panel decision from the Veterans Court. The Veterans Court granted his motion for a panel decision, 

which maintained the single-judge memorandum decision 

as the decision of the court. Wilson v. Shinseki, No. 11-

0165 (Vet. App. Nov. 14, 2012).

III

As noted above, Mr. Wilson’s appeal to this Court 

raises three issues: (1) his view of 38 U.S.C. § 5313, which 
6 WILSON v. GIBSON

would begin reduction of disability benefits on account of 

incarceration for conviction of a felony on the date when a 

conviction is final; (2) his claim that the Board incorrectly 

assessed the factors governing waiver of overpayment; 

and (3) his TDIU claim. We address these issues in turn 

below. 

Our jurisdiction over appeals from the Veterans Court 

is limited. We have “exclusive jurisdiction to review and 

decide any challenge to the validity of any statute or 

regulation or any interpretation thereof brought under 

[§ 7292], and to interpret constitutional and statutory 

provisions to the extent presented and necessary to a 

decision.” 38 U.S.C. § 7292(c). We may not review factual 

determinations or the application of law or regulation to a 

particular set of facts, unless a constitutional issue is 

presented. § 7292(d)(2). 

IV

38 U.S.C. § 5313(a)(1) states in relevant part,

. . . any person who is entitled to compensation . . . 

and who is incarcerated in a Federal, State, local, 

or other penal institution or correctional facility 

for a period in excess of sixty days for conviction of 

a felony shall not be paid such compensation . . ., 

for the period beginning on the sixty-first day of 

such incarceration and ending on the day such incarceration ends, in an amount that exceeds . . . in 

the case of a veteran with a service-connected disability rated at 20 percent or more, the rate of 

compensation payable [for a service-connected 

disability rated at 10 percent] . . . .

(emphases added). 

The Veterans Court provided the following construction of the provision:
WILSON v. GIBSON 7

the beginning of the period of incarceration referred to in 38 U.S.C. § 5313(a)(1) is calculated 

without regard to whether the veteran has appealed his conviction

Mem. Op. at 5. Accordingly, the Veterans Court sustained 

the Board’s conclusion that Mr. Wilson was “incarcerated 

. . . for conviction of a felony” as of October 19, 2001.

Before the Veterans Court, Mr. Wilson argued that a 

conviction is final under § 5313(a)(1) only after exhaustion 

of federal habeas corpus relief. On appeal, he urges the 

same construction of “conviction,” and alternatively 

argues that a conviction is final after issuance of the 

mandate by a state court denying direct appellate review 

of a felony conviction.

Mr. Wilson asserts that § 5313(a)(1) must contemplate the right to appeal a conviction, directly and collaterally, through the writ of habeas corpus. He points to the 

fact that a final state court judgment is a prerequisite to 

habeas corpus review, see 28 U.S.C. §2244(d)(1)(A), and 

from that fact argues that reduction of compensation 

under 38 U.S.C. § 5313(a)(1) should proceed only following entry of a final judgment of conviction of a felony. Of 

course nothing in § 5313(a)(1) prevents the right to appeal 

a conviction, and there is no reason why the requirements 

for perfection of habeas corpus review should have any 

relevance to the statutory determination by Congress that 

compensation benefits should be reduced upon incarceration for conviction of a felony.

The plain language of the statute undeniably supports 

the interpretation of the Veterans Court that reduction of 

compensation under § 5313(a)(1) depends only upon 

incarceration for a period in excess of sixty days for conviction of a felony, not upon the conviction becoming final 

in state courts, or after complete exhaustion of postconviction review opportunities. First, the plain language 

of the statute requires only a “conviction,” not a “final 
8 WILSON v. GIBSON

conviction.” A “conviction” is “[t]he act or process of judicially finding someone guilty of a crime; the state of 

having been proved guilty,” or “[t]he judgment (as by a 

jury verdict) that a person is guilty of a crime.” BLACK’S 

LAW DICTIONARY 358 (8th ed. 2004). In the criminal law 

setting, the ordinary meaning of “conviction” is a trial 

determination of guilt, without regard to whether the 

conviction is appealed. When Congress wants to trigger 

events upon a final conviction, it knows how to do so, and 

does so explicitly. See, e.g., 5 U.S.C. § 8332(o)(3), (6) 

(barring federal retirement benefits following the “final 

conviction” of certain offenses and defining “final conviction” to refer to cases in which appeal rights have expired 

or been exhausted); 10 U.S.C. § 12312(a)(2) (providing for 

involuntary release from military service if a servicemember “is convicted and sentenced to confinement . . .

and the sentence has become final”); 38 U.S.C. 

§ 2411(b)(1)-(2) (barring interment in a national cemetery 

of a person who has been convicted of a Federal or State 

capital crime “and whose conviction is final”). Accordingly, 

there is no basis for importing the requirement of final 

conviction into 38 U.S.C. § 5313(a)(1).

Second, the plain language of the statute states that a 

person incarcerated on a felony conviction “shall not be 

paid [the full amount of benefits] . . . for the period beginning on the sixty-first day of such incarceration.” 

§ 5313(a)(1). This language mandates that the reduction 

of compensation be based on, and measured from, a date 

of incarceration, not from a date upon which a person had 

exhausted all available post-conviction avenues of relief.

Mr. Wilson’s theory of the statute needs the statute to say 

that the incarcerated person not be paid the full amount 

of benefits “for the period beginning on the sixty-first day 

of incarceration after the conviction becomes final.” The 

plain language keys the reduction of compensation to an 

incarceration date without regard to whether postconviction review is pursued.
WILSON v. GIBSON 9

The Secretary’s implementing regulation for 

§ 5313(a)(1) also reads the statute to begin reduction of 

compensation following incarceration for a felony conviction. In particular, the regulation specifies reduction of 

benefits following incarceration for a felony conviction, 

and specifically provides that “[i]f a conviction is overturned on appeal, any compensation . . . withheld under 

this section . . . shall be restored to the beneficiary.” 38 

C.F.R. § 3.665(m). The regulation does not contemplate 

full payment of benefits while post-conviction relief is 

sought, as Mr. Wilson claims. Instead, the regulation 

contemplates reduction of benefits on the sixty-first day of 

incarceration for a felony conviction, and restoration of 

full benefits after successful post-conviction review.

The statute will not bear the weight of Mr. Wilson’s 

argument. Reduction of compensation benefits begins on 

the sixty-first day of incarceration for a felony conviction, 

regardless of whether post-conviction judicial review is 

sought. We therefore affirm the statutory construction of 

the Veterans Court, and reject Mr. Wilson’s contention 

that the overpayment amount is invalid.

V 

Mr. Wilson’s challenge to the Board’s failure to grant 

him a waiver of compensation overpayment goes to the 

facts of the case, as they line up against the standards by 

which a waiver request is measured, which are set forth 

in the Secretary’s regulations at 38 C.F.R. § 1.965. Mr. 

Wilson does not challenge the legality of those standards, 

but instead argues that he should have prevailed under 

them. He thus asks us to reweigh the facts, an exercise 

beyond our jurisdictional reach. See 38 U.S.C. 

§ 7292(d)(2). We therefore dismiss his appeal of the denial 

of his waiver request.
10 WILSON v. GIBSON

VI

Mr. Wilson’s request that we greet and decide his 

TDIU claim frankly admits that this matter was not 

reached and decided in the Veterans Court decision from 

which he appeals. Wilson Brief at 3. As noted above, the 

TDIU claim was alive on Mr. Wilson’s first appeal from 

the Board to the Veterans Court. In that appeal, a joint 

remand request was granted, but a joint request of dismissal of the TDIU claim was also granted. The dismissal 

of the TDIU claim is final and not subject to review on 

this appeal. There is no TDIU issue in the decision on 

appeal. With nothing to adjudicate, we dismiss Mr. Wilson’s TDIU claim for want of subject matter jurisdiction.

Guillory v. Shinseki, 669 F.3d 1314, 1320 (Fed. Cir. 2012).

AFFIRMED-IN-PART AND DISMISSED-IN-PART

COSTS

No costs.