Citation Nr: 1220646 Decision Date: 06/13/12 Archive Date: 06/22/12 DOCKET NO. 10-24 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the Veteran is competent for the purpose of direct receipt of Department of Veterans Affairs (VA) compensation benefits. WITNESSES AT HEARING ON APPEAL Veteran and his mother ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to February 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2010, the Veteran and his mother testified at a hearing before an RO Decision Review Officer (DRO). In September 2010, they both testified at a hearing before a Veterans Law Judge. Transcripts of both of those hearings are associated with the claims file. The Veterans Law Judge who held the April 2010 hearing is no longer with the Board and therefore it is not possible for him to render a decision in this case. In March 2012, the Board sent a letter to the Veteran informing him of this fact and informing him of his right to have a hearing by a Veterans Law Judge who would then participate in the adjudication of his case. See 38 U.S.C.A. § 7107(c) (West 2002). The letter informed the Veteran that if he did not respond within 30 days of the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly. He has not responded. Therefore, the Board will adjudicate his claim without further delay. During the April 2010 hearing, the Veteran expressed a desire to have the payee for his VA compensation benefits changed from a payee service to his mother. This issue is not before the Board. It is referred to the RO for appropriate action. In a statement dated in December 2011, the Veteran indicated that he wished to represent himself in this matter. FINDING OF FACT The Veterans' schizophrenia and cocaine addiction cause him to lack the mental capacity to contract or manage his affairs, including the disbursement of funds without limitation. CONCLUSION OF LAW The Veteran is not competent for the purpose of receiving direct payment of his VA benefits. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.353 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he should be found competent for the direct receipt of money that he is entitled to as compensation for his service-connected disability. 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 or her own affairs, including disbursement of funds without limitation. 38 C.F.R. § 3.353(a). There is a presumption in favor of competency. 38 C.F.R. § 3.353(d). 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. (see § 3.102 on reasonable doubt). Id. Reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. By reasonable doubt, is mean one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove a claim. Id. I. Procedural Posture and Due Process This case involves determining whether the Veteran is competent to handle direct disbursement of VA disability compensation funds. A brief recent history of the case is in order to avoid confusion. Service connection for psychotic reaction was established in a July 1975 rating decision. In an October 1976 rating decision, a 100 percent rating was assigned, effective since December 1975 and the description of his disability was changed to schizophrenia. That 100 percent rating is still in effect and has been effective since December 1975. In a September 1997 rating decision the RO determined that the Veteran was incompetent to handle disbursement of VA funds. In a January 2001 rating decision, the RO restored competency, effective that month. In an August 2001 rating decision the RO determined that the Veteran was not competent to handle disbursement of funds, effective that month. He appealed that decision to the Board. In a May 2005 decision, the Board granted his appeal, and in a June 2005 rating decision the RO restored competency, effective in January 2001. On January 24, 2007, the RO sent a letter to the Veteran along with an enclosed rating decision proposing a finding of incompetency. The letter is signed by a Veterans Service Center Manager (VCSM). In that letter, the RO informed him that before making a decision, VA was providing him with an opportunity to submit evidence to show that the proposed action should not be taken. He was also told that he may request a hearing. The RO informed him that if he desired a hearing he must promptly inform the RO of such decision so that a time and place for the hearing could be arranged. He was also informed that he would be permitted to bring witnesses and that VA would furnish the hearing room, provide hearing officials, and prepare a transcript, but that VA could not furnish transportation or any other expenses. The RO informed him that if he took no action, either by submitting evidence or requesting a hearing within 60 days, then a decision as to competency would be made on the basis of the evidence of record. He did not respond, and in an April 2007 rating decision the RO determined that the Veteran was not competent to handle disbursement of funds. Of record are a VA Form 21-592, "Request for Appointment of Fiduciary, Custodian, or Guardian" dated April 11, 2007 and a VA Form 27-555 "Certificate of Legal Capacity to Receive and Disburse Benefits, dated April 25, 2007. These documents were both signed by a VCSM. He appealed the April 11, 2007 decision and the RO mailed a statement of the case to the Veteran on July 28, 2008, the same date that is listed on the statement of the case. That mailing included notice as to his procedural and appellate rights, including how to perfect his appeal, and an explanation that if the RO did not hear from him within 60 days of the letter or within one year of the April 2007 rating decision, it would close his case. Following that July 28, 2008 letter, the next relevant communication received by the RO was an October 7, 2008 letter from the Veteran's U.S. Representative. Received in January 2009 was a letter from the Veteran stating that he disagreed with the RO's decision of incompetency. The time period having expired for perfecting his appeal of the April 2007 rating decision, the RO had already closed the case. See 38 U.S.C.A. § 7105(d)(3) (West 2002). Hence the April 2007 rating decision is not on appeal to the Board. The RO treated the later communication as a claim to have competency restored. The Veterans Claims Assistance Act of 2000 created certain duties to notify and assist claimants to substantiate their claims. The VCAA is inapplicable to competency cases, in essence because it applies to claims filed under Chapter 51 of Title 38, United States Code. This case, like all competency cases, is subject to the provisions of Chapter 55 of Title 38. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006) (holding that "the notice and assistance provisions of the VCAA do not apply to such claims" to restore competency because an applicant for restoration of competency is not seeking benefits under chapter 51, but, rather, is seeking a decision regarding how his benefits will be distributed under chapter 55). Whether an individual is competent or incompetent in this regard is determined by application of 38 C.F.R. § 3.353 to the facts of the case. This regulation includes specific due process requirements applicable to when it is proposed to make an incompetency determination. Whenever it is proposed to make an incompetency determination, the beneficiary will be notified of the proposed action and of the right to a hearing as provided in 38 C.F.R. § 3.103. If such a hearing is requested it will be held prior to a rating decision of incompetency. Id. Failure or refusal of the beneficiary after proper notice to request or cooperate in such a hearing will not preclude a rating decision based on the evidence of record. Id. The facts noted above show that the RO complied with those due process requirements when it made the April 2007 determination that he was incompetent to handle disbursement of VA funds. Where the beneficiary is rated incompetent, the VSCM will develop information as to the beneficiary's social, economic and industrial adjustment; appoint (or recommend appointment of) a fiduciary as provided in § 13.55 of this chapter; select a method of disbursing payment as provided in § 13.56 of this chapter, or in the case of a married beneficiary, appoint the beneficiary's spouse to receive payments as provided in § 13.57 of this chapter; and authorize disbursement of the benefit. 38 C.F.R. § 3.353(b)(2). If in the course of fulfilling the responsibilities assigned in paragraph (b)(2) the VSCM develops evidence indicating that the beneficiary may be capable of administering the funds payable without limitation, he or she will refer that evidence to the rating agency with a statement as to his or her findings. 38 C.F.R. § 3.353(b)(3). The rating agency will consider this evidence, together with all other evidence of record, to determine whether its prior determination of incompetency should remain in effect. Id. Reexamination may be requested as provided in § 3.327(a) if necessary to properly evaluate the beneficiary's mental capacity to contract or manage his or her own affairs. Rating agencies have sole authority to make official determinations of competency and incompetency for disbursement of benefits. 38 C.F.R. § 3.353(b). Such determinations are final and binding on field stations for these purposes. Id. In Coleman v. Brown, 5 Vet. App. 371, 374 (1993) the U.S. Court of Appeals for Veterans Claims (Veterans Court) stressed the involvement of the VSO (an earlier designation for what now is the VSCM) in determinations of incompetency and reversed the Board's determination of incompetency in that case because the VSO was not involved. In Sims v. Nicholson, 19 Vet. App. 453, 457 (2006), the Veteran's Court noted that the regulation had been changed and the Veteran's Court included in that decision the text of the explanatory language accompanying that amendment of 38 C.F.R. § 3.353, as follows: In a recent decision ( Coleman [ supra]) the United States Court of Veterans Appeals interpreted § 3.353(b) as requiring VSO participation prior to determination of the issue of incompetency. Although the VSO was meant to play an integral role in developing evidence relating to the veteran's ability to handle his or her affairs, the intent of the regulation was to give rating boards the sole responsibility for incompetency determinations without the VSO participating in the decision. Although it was intended that evidence produced by the VSO could lead to later reconsideration of the incompetency determination, it was not intended that the VSO's concurrence be a condition precedent to rating a beneficiary incompetent. The VSO's investigation was meant merely to provide an additional safeguard which could lead to later review. The proposed amendment provides that the rating board has the sole authority to determine the competency of beneficiaries, but that if the VSO develops new information bearing on the issue of the beneficiary's incompetency, the rating board will consider that evidence together with all other evidence of record to determine if the prior determination of incompetency should remain in effect. Sims v. Nicholson, 19 Vet. App. 453, 457 (2006) citing 60 Fed. Reg. 22,016 (May 4, 1995). In the instant case, not only was the VSCM involved in the case but the information developed, the medical examination that was conducted in February 2009, has been considered by both the RO and by the Board in the instant decision. The February 2009 examination provided sufficient information as to the Veteran's social, economic and industrial adjustment; the VCSM did appoint a fiduciary and did select a method of disbursing payments. The VCSM signed the letter accompanying the rating decision on appeal. The VCSM's duties have been fulfilled. Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities. Considerations of medical opinions will be in accordance with the principles of 38 C.F.R. § 3.353(a). Id. VA afforded the Veteran a compensation and pension (C&P) examination in February 2009. The examiner, a psychiatrist, provided a definite expression regarding the Veteran's lack of competency as did his treating psychiatrist in 2007. There is thus sufficient medical evidence for the Board to decide the issue before it. The Veterans Court has issued numerous decisions explaining VA's duty to provide medical examinations in the context of claims for compensation under Chapter 51 of the U.S.C. and what constitutes an adequate examination in that context. The Board has already explained that there are definite expressions regarding the Veteran's lack of competency by responsible medical authorities. Moreover, the medical opinion provided in February 2009 is given consideration in accordance with the principles of 38 C.F.R. § 3.353(a). Although this is not a claim under Chapter 51, the Board will explain that even under that standard, the examination and opinion obtained in February 2009 is adequate. The examiner indicated that she had reviewed the Veteran's VA treatment records and interviewed the Veteran for 45 minutes. She stated that his claims file was not available for review. Despite the lack of the claims file for review, her historical review is consistent with the evidence in the Veteran's claims file See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (explaining that what is important is that the examiner have sufficient medical history upon which to render an opinion, regardless of whether the claims file was reviewed). She provided an extensive report of that history, the Veteran's symptoms, and results of mental status examination. She also provided a clear diagnosis. She concluded that the Veteran was not competent to handle disbursement of VA funds and provided a sufficient analysis to support the opinion. Her examination was thorough and contemporaneous with the period of interest. The Board therefore finds the examination and opinion rendered were adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 121-123 (2007) (explaining that an adequate opinion is one based on consideration of the Veteran's prior history, a sufficiently detailed description of the disability, and includes an analysis that can be weighed against other opinions); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (explaining that examinations must be thorough and contemporaneous and take into account records of prior medical treatment). In April 2009, the RO issued the rating decision that is on appeal. In that decision, the RO informed him that no revision was warranted as far as the finding that he was incompetent. Here, many of the Veteran's hospitalizations have been at private hospitals. VA has no duty to obtain records from those hospitals. Not only does the VCAA not apply to this case but the question here is whether, due to disease, the Veteran lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. The medical expressions of the responsible medical authorities in this case are sufficient to make that determination and the references in VA treatment records to his hospitalizations are sufficient for the Board to determine that the medical expressions referring to hospitalizations, and the facts surrounding the hospitalizations are accurate. Based on the above, the Board finds that the Veteran has been afforded the due process required by statute and regulation. II. Merits Determinations relative 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. 38 C.F.R. § 3.353(c). In the instant case, the Veteran's treating VA psychiatrist and the psychiatrist who examined him in February 2009 have provided definite expressions with regard to the Veteran's competency. In short, the Board finds that the Veteran is not competent to handle direct disbursement of VA funds because the medical evidence is clear, convincing and leaves no doubt as to his incompetency. This evidence shows that his psychiatric disability results in frequent hospitalizations due to noncompliance with treatment, exacerbation of his disability through alcohol and illicit drug abuse, and that he has a demonstrated lack of insight into the seriousness of his disability and the negative effects of alcohol and illicit drug abuse. This in turn tends to show that due to his psychiatric disease he lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. His psychiatric disability has been rated as 100 percent disabling for many decades. Therefore, the holding of incompetency is consistent with the percentage of his disability. As the Board explains below, the facts relating to his hospitalizations are also consistent with the holding of incompetence. His statements and those of his mother stand alone as to evidence favorable to his claim but those statements are outweighed by the medical evidence. The most relevant evidence is from 2005 forward because that is the evidence addressing his mental capacity since he was last found to be competent. All treatment records are VA treatment records unless otherwise stated. A January 2006 psychiatry note documents that the Veteran was agitated and grossly intoxicated during an attempt to interview him. The Veteran reported that he had been staying in his room drinking; he expressed his belief that he could drink if he so desired, and his appearance was disheveled. He failed to show for his next appointment. In October 2006 he was admitted for inpatient psychiatric treatment. The admission notes include that the Veteran had used alcohol and illicit drugs nine days prior to admission and had not used any prescribed drugs. This admission was a transfer from a private hospital where he was admitted earlier that month. At the time of that admission he was agitated, aggressive, confused and exhibiting bizarre behavior. He was mumbling and voiced homicidal ideation with regard to his siblings. He was also suicidal and his mood was irritable. Upon admission to VA he was cooperative, without active suicidal or homicidal ideation. A psychiatrist assigned a Global Assessment of Functioning (GAF) of "25" as of admission. At the time of his discharged several days later it was "38." Here, the Board notes that the portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2011). The DSM-IV contains a GAF scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health - illness. Higher scores correspond to better functioning of the individual. GAF scores between 21 and 30 are assigned where behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends. Id. GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family and is unable to work). Id. The GAF scores assigned above, and assigned during earlier admissions, is evidence that the Veteran's behavior is consistent with a determination that, due to psychiatric disease, he lacks the mental capacity to contract or to manage his own affairs, including disbursement of funds without limitation. Psychiatric symptoms described in these notes include that he has a history of auditory hallucinations, has become very focused and agitated about his mother taking his money and his family stealing his medication, and that he becomes explosive when he thinks his mother will not give him his money. These notes also document that the has a significant history of cocaine abuse. The notes state that the Veteran has expressed his belief that he should be able to have his own money and live on his own. The clinician stated that the Veteran is unable to live on his own and needs either the supervision from his mother, who had worked many years in mental health care, or in a group home. A report of contact from December 2006 documents that the Veteran's treating psychiatrist called to recommend that a custodian be named for the Veteran, "since in his opinion veteran cannot take care of his own VA benefits due to drug addiction." Notes from December 2006 telephone conversation document that the Veteran's mother called requesting a payee for receipt the Veteran's benefits. She reported that she wanted a payee because the Veteran was spending money on drugs and not taking his medication. In early January 2007 the Veteran was admitted for inpatient care after becoming disruptive in the emergency room. He was talking to himself and seemed excited. He was administered intramuscular Haldol. Psychiatric evaluation two days later included discussion of finding a group home. His behavior was described as minimally cooperative with intermittent eye contact and a tendency to walk away while being addressed. His speech was pressured, rapid, difficult to clearly understand, and rambling. Insight and judgment were described as difficult to determine due to communications issues. The assessment included that he had been admitted for increased violent behavior and agitation in addition to issues regarding medication adherence. During his inpatient treatment he was compliant with taking medication and his behavior returned to baseline. This report and the above described records are what triggered the RO's January 2007 proposal of incompetency. September 2007 treatment notes document that he had missed appointments since his January 2007 discharge from inpatient psychiatric treatment. The psychiatrist describes the Veteran as generally medication noncompliant and that he denied drug use and is never candid about the drug use. He was sent for drug screen which came back positive for cocaine. June 2008 treatment notes document that the Veteran reported that his mother was getting Alzheimer's disease and that he had filed to regain his competency to handle his funds and needed a letter from the psychiatrist. The psychiatrist indicated that he refused to provide the letter. He stated that the Veteran then admitted to using 50 to 100 dollars of cocaine sporadically during the month as he gets 250 dollars every other week. He reported using cocaine three days prior to the appointment and that he uses marijuana occasionally. He had no suicidal ideation. Diagnosis was paranoid schizophrenia and cocaine dependence. The psychiatrist stated that the Veteran's schizophrenia was under relatively good control but little could be done about his cocaine use. October 2008 notes document that the Veteran had been hospitalized for three days following a three week cocaine binge. December 2008 treatment notes document that the Veteran was doing better in terms of drug use with no cocaine use and only occasional marijuana use. He still suffered from auditory hallucinations but only every few days. December notes also include comments regarding his mother whom the psychiatrist interviewed that day. He stated that she was quick witted and not at all impaired mentally. He remarked that she already handled most of the Veteran's money. Also listed in this note is that the psychiatrist recommended that the payee be switched from a payee service to the Veteran's mother. In February 2009 the Veteran underwent a C&P examination for the purpose of obtaining information to determine whether or not competency should be restored. The examiner provided a detailed medical history gleaned from interview with the Veteran and review of VA treatment records. She explained that he had multiple hospitalizations and that the hospitalizations generally resulted from medication noncompliance coupled with drug and/or alcohol abuse. She reported that his most recent hospitalization was two weeks earlier. She stated that the most recent inpatient treatment was prompted by auditory hallucinations telling him to harm himself. She stated that the records indicated that he had been off alcohol for close to a month but had been drinking heavily that evening. The examiner stated that although records indicated that the Veteran was drinking heavily prior to his hospitalization, the Veteran denied excessive alcohol abuse. He denied any recent episodes of intoxication and reported that he was active in Alcoholics Anonymous (AA). He did admit to occasional cocaine, crack, and marijuana use but stated that his last use was three months earlier. He reported that every few months he uses about 100 dollars worth of drugs. As to present medical, social, and occupational history, the examiner stated that the Veteran is relatively free of hallucinations when he is compliant with his medication. She stated that the records tend to show that the Veteran has extended periods when he is alcohol and drug free but experiences relapses due to periodic sporadic drug use and noncompliance with medication and treatment planning. She reported that as to occupational status, the Veteran had not been employed for a number of years. She explained that he lives with his mother and adult nephew and that he reported that he has some regular contact once or twice per month with his only friend. He reported no family conflict and that he has had a steady girlfriend for the last two years. He reported dating his girlfriend, going to the YMCA two or three times per week, and attending weekly AA meetings. Subjectively he admitted to a long history of auditory hallucinations and stated that when he is medication compliant he rarely hears voices. He endorsed some impulsivity in the form of impulsively stopping his medicine and impulsively taking alcohol or drugs. The examiner stated that the Veteran displayed poor insight into his behavior when off medications. Mental status examination found the Veteran pleasant and cooperative. His speech was rapid but pressured, and, at times, mumbling. He was well dressed and groomed. He was alert and oriented times three with mostly intact memory but he underestimated the number of his psychiatric admissions. The examiner stated that the Veteran appeared to do his best to cooperate with questioning and answering questions but frequently provided information directly in contrast to clinical documentation. She stated that his insight into his psychiatric illness and the reliability of his information is therefore questionable. She stated that his intelligence and fund of knowledge appeared to be below average. She stated that he had limited insight into his psychiatric illness and need for consistent use of medication as well as limited insight into the impact that his alcohol and drug use has had on his symptomatology and need for frequent hospitalizations. The examiner then provided a lengthy discussion regarding the Veteran's capacity to manage financial affairs. She explained that it is felt that he is not competent to manage his VA monies. She stated that he appeared to have a good understanding of the sources of his income and to give a reasonable accounting of his monthly expenses but noted that he was not accompanied by anyone to corroborate his account. She also explained that even if such corroboration was available, he would still be deemed incompetent based on his limited insight and the historical evidence in regards to his poor judgment. She reiterated that he has limited insight into the severity of his clinical condition and the need for compliance with medication and treatment as well as limited insight into how his alcohol and drug use adversely affects his condition, despite his mental health treatment, supervision by his mother, and his involvement in AA. She went on to state that he continues to have relapses and that he has required the use of injectable forms of medication due to his treatment noncompliance. She explained that it was therefore felt that he is at a high risk for additional exacerbation of his schizophrenia and drug and alcohol relapses. She recommended that the Veteran's payee be his mother instead of a commercial payee service. She also provided diagnoses and an integrated summary which, for the most part, repeats what was stated above. She assigned a GAF score of 30 explaining that the Veteran presents with serious symptomatology, including frequent chronic hallucinations , paranoia, and periodic ideas of reference. She stated that he presents with impaired insight and judgment as well as mental impairment which requires supervision. She reported that he has periods of agitated behavior, especially during periods of noncompliance with treatment. Treatment notes after that examination document little change from what the examining psychiatrist explained and are consistent with what she explained. Notes from December2009 document that the Veteran has a diagnosis of paranoid schizophrenia and noncompliance complicated by cocaine usage. These notes document that he was hospitalized that September because of hallucinations and suicidal ideation and, because of his history of noncompliance he was placed on injectable Haldol along with his other psychiatric medication. Notes from February 2010 document that he denied hallucinations or ideas of being harassed or followed but that the last occurrence of hallucinations was about one month ago when he went off of his medication and had auditory hallucination requiring admission to a private hospital for one week. He reported last using cocaine two months earlier. This evidence is in line with the expressions of the medical examiner found in the February 2009 report. It supports her determination; it tends to show that due to the Veteran's psychiatric disease, he lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. Also considered by the Board is the medical evidence prior to when the Board determined that he was competent, in 2005. This evidence is also consistent with the February 2009 examination report. He was hospitalized in April 2002 because of command auditory hallucinations and suicidal ideation. The note states that he was noncompliant with medication and had intermittent cocaine abuse. He explained that he had stopped taking his medication about a month earlier because he felt that he did not need it and had since decompensated. He reported that he used 40 dollars worth of crack cocaine 3 days prior to admission "because I could." He also reported that he had not used since he was hospitalized in October - November 2003. There are notes form that October - November 2003 admission. He was admitted with suicidal ideation, command auditory hallucinations, and it was noted that he had not been compliant with his medications for the past month. After stabilization on medication he was discharged. The notes show a GAF of 30 on admission and 55 at discharge. Those notes also include a competency opinion stating, in its totality "[t]he patient is competent to make decisions for himself at the time of discharge." The Veteran was hospitalized for psychiatric symptoms in February 2004 because of increased auditory hallucinations and ideas of reference following discontinuation of his psychiatric medication. He reported that he had been clean and sober since his last admission in late 2003 but binged on cocaine three days prior to coming to the hospital. It was noted at that time that he had two previous hospitalizations for the same reason. He reported that he stopped taking his medication but did not explain why. During that hospitalization he also commented on his recent crack cocaine use, explaining that it was for two or three days (30 dollars per day) to control his psychotic symptoms. There is a checkmark for a selection that at the time of discharge he was independent as to self-care and health management. His GAF score was 30 at admission. Although those notes include a determination of competency by medical professionals, the notes are prior to the Board's 2005 decision that granted his appeal as to restoration of his competency. That competency determination is therefore not probative of whether the Veteran has been competent since that 2005 decision. What the notes do show is a long standing pattern consistent with what the February 2009 examination report describes. The Board finds the medical evidence described above to be clear, convincing and to leave no doubt that the Veteran, because of his schizophrenia and drug addiction, lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. The only medical professionals who have provided opinions with regard to his competence have provided opinions since he was last determined to be competent have provided opinions that he is not competent. The Board has considered the Veteran's written statements and testimony both before the DRO and the Veterans Law Judge. The Veteran's statements, for example in April 2007, July 2008, January 2009, August 2009, January 2011, and August 2011 largely consist of his dissatisfaction with having a payee rather than himself for his VA funds. He also contends that he has made efforts that should result in his direct receipt of his funds. For example in the 2011 letters he stated that he has not been hospitalized for some time and that he attends AA meetings regularly. During the April 2010 DRO hearing, the Veteran testified that he is treated at VA where he receives medication every three months. During that hearing, the Veteran's mother testified that he can handle is VA funds, explaining that he handles a bank account for his Social Security disability and that she does not receive that money. When asked by the DRO if a physician had stated that he could handle all of his VA funds, the Veteran responded that "they wrote a letter that I could handle it." During the September 2010 hearing, the Veteran testified as to how is funds are now distributed. He also testified that he had not been hospitalized, qualifying that as in a VA hospital, since 2007. When asked about his past problems with alcohol he testified that he does not drink as much as he used to and that he used to have a problem with cocaine but had been clean for over seven months. He also testified that he had been going to a meeting, presumably an AA meeting, three times per week and that he takes his medication on time. His representative testified that although he had been hospitalized several times the representative believed it important that he seeks medical attention when needed. Also acknowledged was that the Veteran had a history of medication noncompliance. The Board finds that these statements are not evidence so probative as to find that the Veteran is competent for VA purposes. It is acknowledged that the Veteran's mother is described in the February 2009 examination report as a retired mental health aide who worked with mentally handicapped individuals for thirty years. Her opinion that he is the Veteran is competent to handle VA funds has been given due consideration by the Board but the Board finds it to not disturb a finding that the medical evidence is clear and convincing and leaves no doubt that the Veteran is not competent under 38 C.F.R. § 3.353. The opinions of his treating psychiatrist and the examining psychiatrist are considered by the Board to be of very probative value because the opinions are rendered from a more objective point of view, and in the case of the February 2009 examining psychiatrist, include an extremely detailed and extensive explanation to support the conclusion that the Veteran is not competent. Furthermore, the treatment records are much more consistent with the examiner's statement than with the Veteran's mother's opinion. Although the Veteran testified to the effect that he had not been hospitalized at a VA hospital since 2007, the December 2009 treatment records provide evidence that he was been hospitalized due to his schizophrenia in September 2009 and the February 2010 records document that he was admitted to a hospital in January 2010. Both of these had to do with essentially the same set of circumstances that had resulted in hospitalization previously. The Board therefore does not find his testimony in this regard particularly favorable to his claim for restoration of competency. Also considered is his statement that VA physicians have written a letter to the effect that he is competent. While the Veteran is competent to provide this testimony, the Board finds more probative the fact that there are no such letters associated with the claims file nor any mention of such letters in the treatment records. Furthermore, not only are there no such letters in the claims file but the treatment records contain evidence in direct contradiction to what the Veteran has stated. This is shown by the September 2007 remark from the physician indicating that the Veteran had requested such a letter but the physician refused to provide it. The only "letter" that the Veteran may have interpreted as showing that he is competent are electronic entries from August and October 2002 stating that the Veteran came in for his scheduled appointment, was doing well, free of hallucinations, living with his mother, cocaine free, and smiling and pleasant, with cocaine dependence in remission. These entries, however, did not state that he was competent. Of interest is that these entries were authored by the same psychiatrist who is listed on the December 2006 report of contact as recommending appointment of a fiduciary for the Veteran because his drug addiction rendered him unable to take care of his own VA benefits. This tends to show that whatever the psychiatrist may have thought in 2002, by 2006 his opinion was clear evidence that the Veteran is incompetent for VA purposes. In summary, the evidence not only preponderates against a finding of competency, the medical evidence already discussed is clear and convincing and leaves no doubt that the Veteran lacks the mental capacity to contract or manage his affairs, including the disbursement of funds without limitation. Therefore his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Restoration of competency is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs