Citation Nr: 0701635	
Decision Date: 01/19/07    Archive Date: 01/25/07

DOCKET NO.  96-31 125	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUE

Whether the veteran is competent for Department of Veterans 
Affairs (VA) benefits purposes. 


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

W. Preston, Associate Counsel


INTRODUCTION

The veteran served on active duty from September 1970 to June 
1972.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a February 1996 decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Columbia, South 
Carolina, which granted entitlement to service connection for 
schizophrenia and assigned a 100 percent rating, effective 
from December 1, 1989.  That rating decision determined that 
the veteran was incompetent for VA purposes according to the 
provisions of 38 C.F.R. § 3.353.

The Board has remanded this appeal on three earlier 
occasions: in September 1998, in April 2001, and in February 
2004.  

In a May 1999 statement to the RO, the veteran raised the 
issues of entitlement to a compensable rating for residuals 
of an injury to the left infra orbital region, as well as 
entitlement to service connection for a scar over the left 
orbital bone, and for the loss of the left eye.  As noted in 
the February 2004 remand, these issues had not been developed 
or certified for appellate review.  Accordingly, the remand 
referred these matters to the RO for appropriate 
consideration.  Unfortunately, since then, the RO has failed 
to develop these issues for appellate review.  While these 
issues are not intertwined with the issue addressed below, 
they are again referred to the RO for appropriate and 
expeditious review.


FINDING OF FACT

The veteran has the mental capacity to contract or manage his 
own affairs, including disbursement of funds without 
limitation. 


CONCLUSION OF LAW

The veteran is competent for VA benefits purposes.  38 
U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 
C.F.R. §§ 3.102, 3.159, 3.353 (2006). 




REASONS AND BASES FOR FINDING AND CONCLUSION

The Board takes note of the fact that this case has been 
pending since the February 1996 rating decision was 
promulgated.  The veteran contends that he is capable of 
managing his personal and financial affairs and therefore 
should be found competent.  The Board agrees.

A decision as to incompetency may be made by the RO, subject 
to appeal to the Board.  38 C.F.R. § 3.353(b). 

For VA purposes, a mentally incompetent person is one who, 
because of injury or disease, lacks the mental capacity to 
contract or to manage his affairs, including the disbursement 
of funds without limitation.  38 C.F.R. § 3.353(a).  There is 
a presumption in favor of competency.  Where reasonable doubt 
arises regarding a beneficiary's mental capacity to contract 
or to manage his affairs, including the disbursement of funds 
without limitation, such doubt will be resolved in favor of 
competency.  38 C.F.R. §§ 3.102, 3.353(d).

Medical opinion is required for the rating agency to make a 
determination of incompetency.  Unless the medical evidence 
is clear, convincing and leaves no doubt as to the person's 
incompetency, the rating agency will not make a determination 
of incompetency without a definite expression regarding the 
question by the responsible medical authorities.  38 C.F.R. § 
3.353(c).  Determinations as to incompetency should be based 
upon all evidence of record, and there should be a consistent 
relationship between the percentage of disability, facts 
relating to commitment or hospitalization, and the holding of 
incompetency.  Id.

With the above criteria in mind, a February 1996 rating 
decision granted service connection for schizophrenia, and a 
100 percent disability rating was assigned.  That disability 
evaluation remains in effect at the present time.  The 
veteran is also service connected for residuals of an injury 
to the left infra orbital region.

The February 1996 rating decision also declared the veteran 
to be incompetent to handle the disbursement of funds.

After reviewing the evidence of record the Board finds that 
the evidence of record is  not clearly and convincingly in 
favor of finding the veteran incompetent.  The claim will 
therefore be resolved in the appellant's favor.

In this regard, the record contains divergent medical 
opinions as to the veteran's competency.  In December 1995, a 
VA examiner opined that the veteran, with the help of his 
brother, was capable of managing his own affairs.  Further, a 
March 1997 VA field examiner opined that the veteran, with 
the help of his brother and/or a friend, was capable of 
managing his funds.  An August 1999 VA hospitalization 
discharge summary reported that the veteran was competent to 
handle his own funds.  Finally, the October 2001 VA examiner 
in two reports, including an August 2003 addendum, opined 
that "it cannot be conclusively or indubitably established 
that the veteran is unable to manage funds awarded in his own 
best interest."

Because, however, there remained doubt as to the veteran's 
ability to manage funds for his own benefit, as attested to 
by the treatment record evidence on both sides of the dispute 
summarized in the Board's February 2004 remand, the Board 
ordered a .  a competency examination of the veteran which 
was conducted in February 2006, by a board consisting of one 
VA psychiatrist and two VA psychologists.  The claims file 
was reviewed.  The examiners reported the veteran expressing 
suspiciousness about the motives and honesty of his 
conservators.  The examiners noted that the veteran was 
currently receiving treatment at the Charleston VA Medical 
Center (VAMC).  The veteran reported living by himself at an 
inn.  From the examination report, it appeared that he 
currently managed his own activities of daily living, to 
include ensuring that his bill payment obligations were 
forwarded each month to their proper recipients.  The 
diagnosis was paranoid schizophrenia.  

In addressing the appellant's competency, or lack thereof, 
the VA psychologists found that in his present condition the 
appellant was able to manage his finances successfully.  The 
examiners were unanimous in finding that from the point of 
view of his cognitive abilities, the appellant displayed the 
skills so required.  The psychiatrist, however, advised 
against the veteran's independent management of his own 
finances.  Rather, the psychiatrist recommended that the 
veteran's competency be reconsidered after a solid year of 
sobriety and compliance with his medication.  Among the 
reasons cited were the veteran's history of numerous 
hospitalizations over the years, noncompliance with 
medication, and frequent, including recently reported 
episodes of alcohol abuse.  An oral report of a recent such 
relapse and hospitalization from a substance abuse staff 
nurse was cited in particular.

Notwithstanding the psychiatrist's opinion, in light of the 
findings in favor of competence, in light of the fact that 
the high legal standard for determining incompetency has not 
been met, and in view of a separate February 2005 VA medical 
opinion in favor of competency the appeal must be resolved in 
the appellant's favor.  As such, the Board finds that the 
veteran is competent for VA purposes.  

In support of this finding, the record reflects that the 
veteran is living by himself and appears to be properly 
attending to such matters of daily living as paying his 
bills.  Moreover, psychologists examining the veteran during 
the most recent VA examination of his competency opined that 
he was presently capable of successfully managing his own 
finances.  Hence, based on the veteran's ability to meet his 
financial obligations and otherwise manage his activities of 
daily living, the Board holds that he is competent for VA 
compensation purposes.

The finding that the veteran is currently competent has no 
bearing on any future determination of competency.  Indeed, 
the Board strongly recommends that the RO monitor the 
appellant's mental health on a regular basis in order to 
ascertain if there is deterioration in his mental health such 
that a guardian is in order to protect the veteran in light 
of any future incompetence.

As to the Veterans Claims Assistance Act of 2000, the above 
decision constitutes a complete grant of the maximum benefit 
allowable by law or regulation.  Therefore, the Board finds 
that a discussion of the Veterans Claims Assistance Act of 
2000 and the effect it had on the claim is unnecessary.




ORDER

The veteran is competent for VA benefits purposes.


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs