Citation Nr: 0812477 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-02 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Competency to handle disbursement of VA benefits. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD Lawrence W. Klute, Associate Counsel INTRODUCTION The veteran had active military service from August 1982 to August 1985 and from July 1989 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2005 decision by the Department of Veterans Affairs regional Office in Detroit, Michigan (the RO) which found the veteran to be not competent to handle disbursement of funds. FINDING OF FACT The evidence does not show that the veteran currently lacks the mental capacity to contract or to manage his affairs, including disbursement of funds, without limitation. CONCLUSION OF LAW The veteran is mentally competent for VA purposes. 38 U.S.C.A. § 501(a) (West 2002; 38 C.F.R. § 3.353 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks to be recognized as being mentally competent for VA purposes. He essentially contends in his July 2005 notice of disagreement, and in his January 2006 substantive appeal, that he has always managed his own funds with no problem since his VA benefits began; that he has never been evicted; and that he has never had anything shut off due to lack of payment. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000(VCAA) In general, the VCAA sets forth the VA's duties to notify and assist veterans regarding their claims. See 38 U.S.C.A. § § 5103, 5103A (West 2002). However, the United States Court of Appeals for Veterans Claims has determined that the duty to notify and assist provisions of the VCAA are not for consideration in competency determinations. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Accordingly , the VCAA is not applicable to this case. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. Pertinent law and regulations 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. See 38 C.F.R. § 3.353(a) (2007). 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. See 38 C.F.R. § 3.353(c) (2007). 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 38 C.F.R. §§ 3.102, 3.353(d) (2007). Factual background The Board believes that certain relevant facts will be useful in understanding its decision. The veteran was discharged from military service due to mental illness. He has been service connected for bipolar disorder since his military discharge in November 1993, and a 100 percent disability rating has been assigned from June 1996. In a December 1997 rating decision, the RO determined that the veteran was not competent to handle disbursement of funds. The veteran appealed that decision. In his February 1998 substantive appeal he stated that bipolar disorder was not with him 100 percent of the time; that he paid his bills; and he had a strong support system. In a March 2, 1998 determination, the RO allowed continuation of direct deposit under supervised direct payment to the veteran. The veteran thereupon withdrew his appeal. Pursuant to the report of a May 1999 examination, the RO determined in September 1999, in pertinent part, that competency for VA purposes was restored. It was noted that the veteran was meeting his financial obligations with the assistance of his girlfriend and his sister. Analysis The RO determination of incompetence which is the subject of this appeal is based on an August 2004 examination. At the examination, the veteran reported that he was not taking his prescribed mental health medication. He was not working; worked once or twice a year as a bouncer. He lived alone and had a couple of girlfriends. He stated that his sister and ex-wife helped him manage his affairs. The examiner observed that the veteran was alert and oriented with a mood showing some hypomania. His memory was intact, and he was able to do simple calculations. His insight and judgment was limited relating to treatment. Impulse control was fair. He had occasional anxiety attacks. The examiner, a VA psychiatrist, diagnosed the veteran with bipolar disorder, hypomanic phase. The examiner commented that because the veteran was not pursuing active treatment, he was incompetent for VA purposes. The examiner wanted the withholding of competency to be an inducement for the veteran to enter treatment. During the pending appeal, the veteran has continued to receive direct payment of his VA benefit on a supervised basis. The September 2006 report of a VA field examiner who interviewed the veteran at his home noted that the veteran was dressed properly; he was independent in taking his medication; and he was alert, calm, and cooperative during the interview. He was oriented to time, place, and event; spoke coherently; knew the current day, date, year, and his date of birth; had good knowledge of current events; and had a good ability to communicate. The field examiner commented that the veteran's condition was stable. Crucially, the VA field examiner stated that the veteran showed the capacity to manage his own funds. He had received his VA benefit in his own name since entitlement in 1993. He knew the source and amount of his in income, and his monthly expenses. His ability to solve a math problem was good. She reviewed his finances, noting that he had no credit card debt. She saw no unmet needs or adverse conditions. She opined that the information clearly showed that a third party payee was not necessary, and recommended that the case should be referred for a review for a re-rating to competent. Based on the foregoing evidence, the Board finds that the presumption of competency has not been overcome, and that the veteran is competent for VA purposes. It is clear that the most recent evidence of record, the September 2006 report of the VA field examiner, unequivocally endorses the veteran's ability to manage his funds, as well as his mental stability in general. The Board additionally notes that the VA examiner in his August 2004 report did not note anything very negative or unusual about the veteran, except for some hypomania (his hypomania has been noted throughout his treatment history) and his failure to take his mental health medication. His insight and judgment were only limited relating to treatment. In that connection, although the VA examiner's gambit of holding out the threat of incompetency as an inducement for the veteran to seek medical treatment for his mental illness may have been well intentioned, the Board hardly sees this as evidence that the veteran was not competent for VA purposes. The entire tenor of the August 2004 examination report was not supportive of a finding of incompetence. The Board additionally observes that on two occasions during the last decade the veteran has capably pressed his appeal of a finding of incompetency by the RO. Further, since the September 1999 RO finding of competency, he has continued to manage his funds and take care of his daily activities without the need of a guardian or payee, but with the occasional assistance of his sister. For all the expressed above, the veteran's appeal is granted. ORDER The veteran is deemed competent to manage his own affairs without limitation. The appeal is accordingly granted. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs