Citation Nr: 0814009 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-22 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the appellant is competent for Department of Veterans Affairs benefits purposes to handle disbursement of funds under the provisions of 38 C.F.R. § 3.353. ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals ("BVA" or "Board") on appeal from a September 2004 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO") in Cleveland, Ohio in which the RO affirmed a finding of incompetency for disbursement of VA funds instituted in August 1997. See August 1997 rating decision. The appellant, who had active service from May 1983 to January 1985, appealed that decision to the BVA. Thereafter, the RO referred the case to the Board for appellate review. The Board observes for the record that the appellant requested a hearing before a Decision Review Officer in October 2004 that was scheduled for August 2005. See appellant's notice of disagreement; July 2005 notice to the appellant. It appears that the appellant later informed the RO that he was unable to appear for his hearing; and that he desired the hearing be rescheduled. The appellant's hearing was then rescheduled for October 2005. However, the appellant failed to appear. A note contained in the claims file indicates that the RO made numerous attempts to contact the appellant in order to potentially reschedule the hearing, but that these attempts were futile. As such, the Board views the request for an RO hearing to be withdrawn by the appellant. See October 2005 report of contact; October 2005 Supplemental Statement of the Case. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The more probative medical evidence of record clearly establishes that due to his organic brain syndrome, the appellant lacks the mental capacity to manage his own affairs, to include handling disbursement of VA funds. CONCLUSION OF LAW The appellant is not competent to handle the disbursement of VA funds. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.353(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. The Veterans Claims Assistance Act As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 ("VCAA") that became law in November 2000. The VCAA provides, among other things, that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007). The Board observes for the record that 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 competence cases, is subject to the provisions of Chapter 55 of Title 38. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006) (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). However, even though compliance with the provisions of the VCAA is not mandated in competency cases, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions of the VCAA with respect to the appellant's claim for restoration of competency for VA purposes. See 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326. In this regard, the Board observes that the appellant was found to be incompetent in August 1997 for purposes of handling disbursement of funds subsequent to a proposal to rate him incompetent issued in June 1997. See June 1997 and August 1997 rating decisions. In September 2003, the appellant submitted a statement to the RO indicating that he wanted to be found competent. See emails dated in September 2003. In response to the appellant's statement, the RO provided the appellant with two letters dated in December 2003 and June 2004 that informed the appellant of the evidence necessary to have the appellant rated competent. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant's pertinent VA and private medical records have been obtained, to the extent possible. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. A VA examination as to the appellant's competency was also conducted in August 2004. 38 C.F.R. § 3.159(c)(4). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As such, the Board finds harmless any failure on the part of VA to provide additional notice or assistance since such failure would not reasonably affect the outcome of the case. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Therefore, the Board proceeds below with a merits analysis of the issue on appeal. B. Law and Analysis Unfortunately, the appellant in this case has a long history of mental illness. The evidentiary record shows that he was medically discharged from service due to a psychiatric disorder resulting from a January 1984 motor vehicle accident and was service-connected for (among other things) organic brain syndrome due to trauma. See service medical records dated from February 1984 to July 1984; rating decisions dated in May 1985 and April 1986. He has been rated 100 percent disabled since July 1986. November 1986 rating decision. The Board observes that the appellant's 100 percent disability rating is indicative of gross impairment in thought processes. See 38 C.F.R. § 4.130. A 100 percent disability due to a psychiatric disorder is also indicative of total impairment of employability. See 38 C.F.R. § 3.321(a). The appellant was determined by VA to be incompetent to handle his financial affairs in August 1997. 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). A decision as to incompetency may be made by the RO, subject to appeal to the Board. See 38 C.F.R. § 3.353(b). 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 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). There is a presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency. 38 C.F.R. § 3.353(d); see also 38 C.F.R. § 3.102. In the instant case, the Board has thoroughly reviewed the record on appeal and finds that there is clear and convincing evidence concerning the appellant's mental capacity to contract or to manage his own affairs, including disbursement of funds without limitation, and that the presumption of competency is overcome. The evidentiary record includes VA hospitalization and outpatient treatment notes dated from June 1985 to April 1997 and July 2004 to August 2007, as well as several special neurological, orthopedic and psychiatric examination reports. In terms of the appellant's psychiatric examinations, the Board observes that the appellant's most recent VA psychiatric examination undertaken in August 2004 was afforded to the appellant in response to his request to be found competent. It was also afforded for the specific purpose of determining the nature of the appellant's competency to handle VA funds. See June 2004 examination request. In regards to its analysis below, the Board acknowledges its review of the entire record on appeal but focuses specifically on the relevant evidence that is needed to substantiate the appellant's September 2003 request to be found competent and what the evidence in the claims file shows, or fails to show, with respect to that request. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board finds that the most pertinent evidence related to the appellant's claim consists of (1) the appellant's statements dated from September 2003 to the present, (2) the appellant's August 2004 VA psychiatric examination report and (3) his VA medical records dated from July 2004 to August 2007. In statements dated in September 2003 and November 2005, the appellant essentially expresses his beliefs that (1) he was wrongly injured while on active duty rather than involved in an accident, (2) he was wrongly found to be incompetent to handle his VA payments of compensation and (3) he has been wrongly treated by certain VA employees. In connection with his claim to be found competent, the appellant requested a medical examination for the purpose of determining his competency. See May 2004 statement in support of claim. This examination was provided on August 4, 2004 by a VA psychologist. August 2004 VA examination report. During the examination, the appellant provided a social and medical history that included "false arrest, accusations and being divested wrongfully of compensation in 1995." Id., p. 1. The appellant reported that he had few associates, was not as social as he used to be, and was somewhat detached. Id. He also reported that people were scheming against him. Id. In terms of symptomatology, the appellant indicated that he has suffered from delusions in the past, that he was on too much medication before but that he was presently taking Prozac that made him feel better. Id., p. 2. During his August 2004 clinical interview, the appellant was described as animated, coherent, and oriented. He was noted to be distrustful of others. Id. His judgment and insight were found to be fair. Id. The appellant's speech was reported to be fast-paced and sometimes derailed to that which was irrelevant to the question. Id. The appellant denied any suicidal or homicidal ideation and also denied any audio or visual hallucinations. Id. His personality testing indicated that he responded in a valid manner but that he may have been trying to show himself in a favorable light. Id. At the time, the appellant acknowledged having more unusual experiences than the typical person and the examiner opined that he seemed to be in a moderate level of stress. Id. Based upon the appellant's history, presentation on interview and psychological testing, the VA psychologist diagnosed the appellant with paranoid schizophrenia with minor depressive symptoms and organic brain syndrome. Id., p. 3. She assigned the appellant a Global Assessment of Functioning ("GAF") score of 60. Id. In terms of the medical question at issue, the psychologist found the appellant anxious to handle his own funds and resentful of fiduciary intervention. After viewing all evidence available to her, she opined that the appellant was competent to manage financial funds and financial benefits. However, in making this determination, she recommended that the appellant be required to remain on medications to prevent delusions. Id. She also suggested that the appellant be given a short monitoring period in terms of managing his pension to ensure responsible fiscal management. Id. While the Board might find the August 2004 VA psychologist's opinion to be highly persuasive in this case, evidence dated immediately prior to and subsequent to the August 2004 VA examination report refutes the finding of fiduciary competency made by the examiner. Specifically, the Board observes that medical records dated within weeks prior to the appellant's August 2004 examination reveal that the appellant was hospitalized at a VA medical facility from July 20, 2004 to July 26, 2004 with a diagnosis of paranoid psychosis secondary to remote head trauma. See July 2004 VA medical records, p. 1. At that time, the appellant was found by a VA psychiatrist to be very paranoid. Id. Speech production was noted to be very difficult to understand as the appellant spoke circumstantially, tangentially and often word searched and/or spoke words irrelevant to the appropriate response. Id., p. 2. The appellant's thought processes were found to have obsessively paranoid attributions. Id. His memory was also found to be impaired. Id. At that time, the appellant essentially refused all medication other than Prozac. Id., p. 3. Although found to be blatantly paranoid, loud and disorganized, the appellant was discharged from the hospital since he was directable, displayed no harm to himself or others and was not deemed probatable. Id. His discharge GAF score was 30. Id., p. 1. Subsequent to the appellant's August 4, 2004 evaluation, the appellant was seen by another VA psychiatrist at a VA medical facility on August 9, 2004. See August 2004 VA medical records. The treatment note from this psychiatrist indicates that the appellant was given one dose of the drug risperdal, after which he refused additional medication. The appellant was noted to be angry, loud and agitated. He refused to answer questions poised to him by the VA psychiatrist. Although he was ultimately not found to be probatable, the psychiatrist noted that the appellant was clearly psychotic, loud, agitated, delusional and his thinking was disorganized. Id. In an addendum note, the psychiatrist reported that the appellant's presentation was no different from when he was seen previously by her or by other previous care providers. Id., addendum note to file. The appellant was next seen in October 2004 for a psychosocial assessment as part of a request to change his medical care from one facility to another. See October 2004 VA medical records. At that time, the appellant was noted to be cooperative and alert, with an intact memory. Id. However, his mood was reported as elevated and grandiose and his speech overly-loud and pressured. The examiner noted that the appellant's medication at that time consisted only of Fluoxetine, a drug she thought might be contributing to some of the appellant's hypomanic presentation. Id. While the appellant denied experiencing paranoia and delusions, the examiner reported that she observed this symptomatology during their conversation. Id. In addition, she found his thought processes to be illogical, his insight poor and his judgment poor. Id. When asked about delusions and paranoia, the appellant became upset during his assessment interview. He reportedly accused his examiner of being part of a conspiracy against him and asked to see someone else. Thereafter, he refused to continue with the intake assessment and left the examiner's office, slamming her door hard enough to knock items off the wall. Id. The examiner noted that the appellant's consult was to be rescheduled with another provider. Id. Later that same month, the appellant was seen by another VA medical provider as part of his intake assessment. October 2004 VA medical records. This examiner reported that the appellant could not tolerate any confrontation regarding his delusions. Id. She indicated that he rambled in terms of describing all of the incidents in his life and reported that certain people were involved in a conspiracy against him. A mental status examination again revealed the appellant to be alert, oriented and cooperative, but with pressured speech and evidence of paranoia and delusions. Id. The examiner noted that the appellant's thought processes were illogical and focused on plots and conspiracy against him. In addition, she found the appellant's insight and judgment to be poor. Ultimately, the examiner found the appellant to be disorganized but not to be a danger to himself or others. She recommended that the appellant not be given control of his VA funds until he agreed to full medication recommendations. Id. The appellant agreed to try the medication risperdal along with Prozac. However, he reported to the examiner that he would stop taking the medication if it made him sleepy. Id. Thereafter, the appellant saw his October 2004 VA examiner again in April 2005. See April 2005 VA medical records. At that time, the appellant presented himself at an unscheduled visit for the renewal of medication. He was noted to be pleasant, but extremely delusional with rapid, pressured speech. His mood was again reported to be elevated and grandiose. The appellant denied experiencing paranoia and delusions; however, his examiner observed this symptomatology again during the appellant's conversation. The appellant's thought processes were noted to be illogical; his insight poor and his judgment poor. The examiner again found the appellant to be very disorganized. She stated that while the appellant was not a danger to himself or others at that time, he should not have control over his VA monies until he agreed to full medication recommendations. Id. She assigned the appellant a GAF score of 30. Id. The most recent medical evidence of record indicates that the appellant was seen for an evaluation in April 2007 by another VA psychiatrist after mentioning the possibility of hurting his landlord. See April 2007 VA medical records. The psychiatrist noted at that time that the appellant persisted in being non-compliant with his medication. During the evaluation, the appellant became loud, exhibited pressured speech and became clearly irritated. The psychiatrist reported that the appellant had absolutely no insight and refused to consider any medications other than Fluoxetine. He opined that the appellant would likely benefit from compliance with antipsychotic drugs. However, the appellant adamantly refused to consider these. The appellant was noted not to currently be an imminent danger to himself or others, but the psychiatrist indicated that he could become so if provoked or if frustrated. Antipsychotic drugs were offered to the appellant, but he refused. The psychiatrist also offered to schedule the appellant for a return appointment, to which the appellant's response was ambivalent. The psychiatrist ultimately opined that without adjunctive medication, the appellant's status was unlikely to improve. Id. He assigned the appellant a GAF score of 37. Id. An August 2007 treatment note, entered by the same psychiatrist, essentially reiterated the same findings set forth in the appellant's April 2007 VA medical records. The appellant continued to be assigned a GAF score of 37. See August 2007 VA medical records. As stated above, determinations relative to incompetency are 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. The Board has considered all of the evidence of record and finds that the probative medical evidence of record is overwhelmingly against the finding that the appellant is competent for VA benefits purposes. The only evidence of record that the appellant is competent for VA purposes is the August 4, 2004 VA examination report. However, as discussed above, the Board finds that this medical opinion is not persuasive and has very limited probative value given the fact that (1) it is not the most recent opinion on competency given, and therefore, not the most current and (2) the opinion is clearly contradicted by medical evidence dated both before and after the August 2004 examination report. In terms of this medical evidence, the Board finds it notable that the symptomatology pertaining to the appellant's lack of insight, paranoia and delusions were observed not by a single medical provider, but rather by several different VA psychiatrists and other medical examiners over a period of time. In addition, the more recent evidence of record indicates that the appellant has not been compliant with his medication. Therefore, the August 4, 2004 opinion is essentially moot since that opinion was premised upon the requirement that the appellant remain on medications to prevent delusions. See August 2004 VA examination report, p. 3. While the appellant has submitted statements regarding his competency, his assertions do not constitute competent medical evidence sufficient to rebut the finding of incompetency clearly mandated by the medical evidence discussed above. 38 C.F.R. § 3.353(c); Sanders v. Brown, 9 Vet. App. 525 (1996). Thus, the more competent evidence of record clearly shows that the appellant has profound psychiatric problems due to his organic brain syndrome. Given the consistency of the medical evidence as to the appellant's noncompliance with his medication, evidence of paranoia and delusions and lack of insight, the Board finds that the medical evidence is clear and convincing and leaves no doubt as to the appellant's incompetency. Lastly, the Board notes that GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32). GAF scores ranging between 21 and 30 contemplates a level of impairment whereby 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). GAF cores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g. speech is at time 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). The Board finds that the appellant's most recent GAF scores support the Board's decision. Since the evidence overwhelmingly establishes the appellant's lack of competence to manage his VA funds, the benefit of the doubt doctrine does not apply, and the claim for restoration of competency for VA benefits purposes must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Sanders v. Principi, 17 Vet. App. 329 (2003). ORDER The appellant is incompetent for Department of Veterans Affairs benefits purposes to handle disbursement of funds under the provisions of 38 C.F.R. § 3.353. As such, the appeal is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs