Citation Nr: 0711076 Decision Date: 04/13/07 Archive Date: 04/25/07 DOCKET NO. 03-18 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Competency to handle disbursement of VA benefits. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from July 1971 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In December 2005, the veteran cancelled his request for a hearing before a member of the Board. FINDING OF FACT The veteran lacks the mental capacity to contract or to manage his own affairs, including disbursement of funds without limitation. CONCLUSION OF LAW The veteran is incompetent for VA purposes. 38 U.S.C.A. § 501(a) (West 2002); 38 C.F.R. § 3.353 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION VA regulations provide that a mentally incompetent person is one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. 38 C.F.R. § 3.353(a) (2006). Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetence, the rating agency will make no determination of incompetence without a definite expression regarding the question by the responsible medical authorities. Determinations relative to incompetence 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 incompetence. 38 C.F.R. § 3.353(c) (2006). Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his or her own 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) (2006). The veteran contends that while he does suffer from memory problems, neuropsychological testing has revealed an improvement in his functioning. As a result of his improvement, the veteran believes he should be rated as competent to handle disbursement of his VA benefits. A review of the record reveals that the veteran is totally disabled for service-connected organic brain syndrome as a residual of a ruptured cerebral aneurysm. He is also noted to suffer from hypertension, diabetes mellitus, gastroesophageal reflux disease, hyperlipidemia, obesity, history of seizures, and a history of dental abscess. The veteran filed an application (VA Form 21-526) for VA benefits in December 2001. The application included a statement from the veteran's representative. The statement noted that the veteran had no idea where his bank was or who was withdrawing funds from his account. It was also reported that the veteran's memory was very poor to non-existent. A report of February 2002 VA examination reflects the examiner's finding that the veteran's short-term memory was intact and that he was oriented to person, time, and place. The examiner further noted as follows: With regard to mental status examination, [the veteran] had difficulty in saying the word [ ], which is the location of his adult foster care home. He does not recall the phone number, although it is written down. He is quite concrete in his ideation and interpretation [of] proverbs. He was unable to do serial seven's past 93. Of record is a copy of an April 2002 VA Form 21-4138 (Statement in Support of Claim) from a Dr. G, a physician at the VA Medical Center (VAMC) in Battle Creek, Michigan. In the statement, Dr. G notes that the veteran was incompetent, that he did not have the capacity to manage his funds, and that he was incapable of reasonable responsibility toward his personal financial obligations. The veteran was noted as suffering from dementia with behavior problems and organic brain syndrome. The veteran was notified in May 2002 of the proposed action to find him incompetent and of his right to submit evidence and request a hearing on the matter. See 38 C.F.R. § 3.103, 3.353(e) (2006). In July 2002, the RO determined the veteran to be incompetent to handle disbursement of VA benefits. In November 2002, the veteran's representative submitted a statement (VA Form 21-4138) to the RO. The representative noted in the statement that the veteran knew he was incompetent. A March 2003 statement from the veteran's treating VA psychiatrist to the Department of Motor Vehicles notes that the veteran was normal as to mood and off all psychotropic medications. The psychiatrist also reported that while the veteran did have an occasional word finding problem, this did not affect his comprehension and he was capable of reading and understanding road signs. The psychiatrist supported renewal of the veteran's driver's license. A report of September 2004 VA psychiatric examination reflects that the veteran demonstrated, in particular, a short attention span, lack of insight, poor concentration, and his judgment appeared to have some impairments. The examiner noted that the veteran had a cognitive disorder not otherwise specified secondary to a brain hemorrhage and a craniotomy. Capacity for improvement was noted as limited. The examiner indicated that he would not offer an opinion regarding the veteran's competency until further testing was completed. A report of September 2004 Social Work Service evaluation reflects the examiner's finding that the veteran did manage his spending money and had reasonable knowledge of the value of a dollar. The veteran reportedly had a bank account and utilized an ATM card to make withdrawals as needed. At the same time, the examiner noted that the veteran was not capable of managing his benefit payments in his own best interest without restrictions. The veteran was also noted to experience significant impairment with memory. In this regard, the examiner was reportedly informed by another medical professional that the veteran needed to have things explained to him repeatedly before he understood the information. The veteran also reportedly had to be reminded that he was on a diet, and according to family members the veteran did not properly take his medications. Otherwise, the examiner noted the veteran's report that he sometimes took a Greyhound bus on the weekends to go visit his family. A September 2004 MHICM (Mental Health Intensive Case Management) progress note reflects the veteran's belief that he was capable of living independently. He was informed by the healthcare professional meeting with him that there was concern about him taking his insulin and other medications correctly. The veteran contended that he had always taken his medications correctly. Additionally, the healthcare professional noted that the veteran had difficulty articulating so that he could be understood. He was also noted as wanting his own car and driver's license. When the subject was changed to a discussion of the veteran's family, the veteran reportedly did not seem to notice. In December 2004, the veteran underwent neuropsychological testing. The examiner's summary noted, in particular, as follows: [The veteran] continues to manifest a moderately impaired level of neuropsychological test performance. His [sic] has a preponderance of signs of left hemisphere dysfunction including receptive and expressive dysphasia, dominant, right-sided deficits in manual dexterity in sensorimotor functioning, and some loss of mental flexibility. His dysphasia impeded more accurate estimates of his general mental ability and memory functioning, but he is estimated to function at least to the borderline level of general mental ability. Although still impaired, his test data indicate his functioning in some areas have [sic] improved since his previous evaluation three years ago. A subsequent report of February 2005 VA psychiatric opinion reflects the examiner's review of the claims file to include the September 2004 Social Work Survey evaluation and the report of December 2004 neuropsychological testing. The examiner diagnosed the veteran as having a cognitive disorder (not otherwise specified) and organic mood disorder. He opined that the veteran was not competent for VA purposes on the basis that the veteran's memory affected his ability to take his medications and follow a prescribed diet, and that the veteran needed significant supervision in managing his money. In this case, it would appear that the March 2003 statement from the veteran's treating VA psychiatrist reflects an improvement in the veteran's condition. However, the statement is limited in that it only provides evidence of the veteran's psychiatric stabilization and his ability to comprehend and read road signs. The psychiatrist does not otherwise provide an opinion as to the veteran's competency. The social worker in September 2004 provides a somewhat conflicting assessment of the veteran's ability to manage his own funds. She reported that the veteran did manage his spending money and had a reasonable knowledge of the value of the dollar. At the same time, she also indicated that the veteran was not capable of managing his benefit payments in his own best interest without restrictions. It is not apparent whether this conclusion is the social worker's own assessment or is based on the fact that the veteran was assigned a fiduciary by VA. Notwithstanding these assessments of the veteran, the Board finds the most probative opinion on the issue of competency is that of the February 2005 VA psychiatric examiner. The opinion is based on the examiner's own mental status examination of the veteran in September 2004, plus a review of the veteran's claims file and the medical evidence contained therein. See 38 C.F.R. § 3.353(c) (determinations relative to incompetence should be based on all evidence of record). In particular, the examiner noted the findings of the report of December 2004 neuropsychological testing which reflected functional improvement, as well as the findings of the September 2004 Social Work Service evaluation. The February 2005 examiner's finding of incompetence is supported by a similar finding made in April 2002 by Dr. G of the Battle Creek VAMC. Neither the veteran nor his representative has otherwise submitted or identified any medical evidence that refutes or conflicts with the examiner's February 2005 opinion. In this regard, the representative's written contentions noted in the claims file appear to support a finding of incompetence. Likewise, other than the Social Work Service evaluation in which the examiner gave a somewhat conflicting view of the veteran's abilities to handle his money, the Board finds no other objective medical evidence of record that would lead to the conclusion that the veteran is able to manage the disbursement of his VA funds. Therefore, the Board finds the weight of the competent medical evidence reflects that the veteran is incompetent to handling the disbursement of funds for VA purposes. The Board has considered the veteran's written contentions with regard to the determination of competency. However, his assertions regarding his competency do not constitute competent medical evidence. 38 C.F.R. § 3.353(c); Sanders v. Brown, 9 Vet. App. 525 (1996). The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. The VCAA sets forth the VA's duties to notify and assist veterans regarding their claims. Subsequent to the Board's January 2006 remand, the United States Court of Appeals for Veterans Claims determined that the duty to notify and assist provisions of the VCAA were not for consideration in competency determinations. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). The Board also notes that a review of the claims file reveals that in a January 2006 letter to the veteran's legal custodian, the Appeals Management Center (AMC) requested that the veteran identify or submit evidence in support of his claim on appeal. The claims file does not reflect any reply to the AMC's letter. In August 2006, the AMC issued a supplemental statement of the case. Otherwise, since the February 2005 VA psychiatric opinion, there has been no additional medical evidence submitted that would support a finding of competency. As such, despite efforts to develop information, the Veterans Service Center Manager did not obtain "new information" regarding the veteran's competency to report to the rating agency. See 38 C.F.R. § 3.353(b); Sims, at 456-57. For all the foregoing reasons, the Board finds against a determination of competency. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against a finding of competency, that doctrine and any presumption in favor of competency, is not for application. See 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.353(d) (2006); Sanders v. Principi, 17 Vet. App. 329, 333-34 (2003); Sims, at 458-59. ORDER The veteran is incompetent for VA purposes; the appeal is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs