Citation Nr: 0812742 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-28 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the veteran is competent for Department of Veterans Affairs (VA) benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from January 1974 to April 1976. This matter comes to the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which found the veteran incompetent to handle disbursement of VA funds. In March 2008, the veteran testified before the undersigned Veterans Law Judge at a Board video conference hearing at the RO, at which time a motion was granted to advance the case on the docket. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran is rated incompetent for VA benefits purposes, and claims that competency status should be restored. 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). The veteran is service-connected for schizophrenia and is rated as 100 percent disabled, effective May 7, 1987. In September 1987, he was rated as incompetent to handle disbursement of his VA funds. This rating was continued up until July 2003, when he was found competent. In August 2004, however, he submitted a statement that he wanted to terminate his benefits for schizophrenia because he no longer wanted to be recognized as a paranoid schizophrenic. This was found to be against the veteran's best interests, so he was provided a November 2004 examination to evaluate his schizophrenia and a January 2005 evaluation to determine whether he was competent to handle his funds. The November 2004 VA examiner noted that the veteran was in mild remission but still limited in his diagnosis of schizophrenia; the examiner noted that the veteran appeared competent. The January 2005 VA examiner found, however, that the veteran's request to discontinue his benefits was delusional in nature and represented another act of self-destruction into which he had no insight (the first act was noncompliance with treatment for his diabetes and its complications). The examiner noted that the veteran's disability benefits were his primary means of support for himself and his family and that his request to discontinue benefits was prima facie evidence of incompetence. It was the examiner's opinion that the trial of supervised payments had failed and that the veteran should again be rated as incompetent for VA purposes. In September 2006, a VA social worker submitted a letter noting that the veteran presented discipline, caring, and pride in being a father and that his progress was enlightening and positive. She noted that the veteran made every effort to keep her informed as the dialysis and Team C social worker so that she might provide the needed information to his attending physicians. She further noted that he was always alert and oriented with insight and some coping skills; his mood was depressed and affect flat, but he was never homicidal or suicidal. He continued to request assistance with his family in making their lives emotionally and financially better. The social worker recommended that the veteran be given some responsibility in managing his finances for a specific period of time so that he might learn socialization and responsibility. The social worker further noted that if he was not given those opportunities then he would be more like a captive individual than someone VA is attempting to move beyond the diagnosis. The veteran submitted testimony that he felt he was capable of handling his own money because he wanted to provide for his family and ensure they had the proper education and clothing and that their medical needs were met. The veteran went on to list the amount of money that was handled by his payee each month and that the payee used the money to pay off his bills and set some aside, when possible, for his savings. He mentioned that he had taken out a loan so he could add a back room to his house and that the payee was paying this off. Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, VA 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). As the September 2006 letter and the veteran's testimony have brought the finding of the veteran's incompetency into question, a field examination is deemed necessary to determine whether the veteran is presently competent to handle disbursement of his VA funds. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a VA duty to assist and notify letter addressing his claim for competency status for purposes of handling VA funds. 2. Schedule the veteran for a VA psychiatric field examination to determine whether he is presently competent to handle disbursement of his VA funds. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner should note the veteran's extensive psychiatric history and previous determinations addressing the veteran's competency. A detailed rationale for all opinions must be provided. 3. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claim should then be readjudicated. If the claim remains denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).