Citation Nr: 1105534 Decision Date: 02/10/11 Archive Date: 02/18/11 DOCKET NO. 09-06 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether the Veteran is competent for Department of Veterans Affairs (VA) purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Anderson, Associate Counsel INTRODUCTION The Veteran had active service in the Army from December 1994 to April 1995, and service in the National Guard from October 1998 to February 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a June 2010 Travel Board hearing before the undersigned at the RO. A hearing transcript is associated with the claims folder. FINDINGS OF FACT The Veteran has the mental capacity to contract or to manage her affairs, including disbursement of funds without limitation. CONCLUSION OF LAW The Veteran is competent for VA benefits purposes. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.353(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2010). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. However, in Sims v. Nicholson, 19 Vet. App. 453, 456 (2006), the United States Court of Appeals for Veterans Claims (Court) explicitly held that the notice and assistance provisions do not apply to competency determinations. Consequently, the Board is not required to address the RO's efforts to comply with those provisions with respect to the issue currently on appeal. It is noted however, that appropriate due process was afforded pursuant to 38 C.F.R. § 3.353(e), which requires that a proposed finding of incompetency be issued to notify the Veteran and to inform her of her right to a hearing. Such was accomplished here by way of a January 2003 proposed finding of incompetence. In this instance, a hearing was not requested. II. Competency The Veteran, who has had a 100 percent disability rating for bipolar disorder since 2002, among other service-connected disabilities, has been deemed as incompetent for the purposes of managing her VA monetary benefits. The RO made a finding of incompetency in an April 2003 rating decision. She contends that competency status should be restored. 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. A medical opinion is required for the rating agency to make a determination of incompetency. "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. . . . 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). The Board has reviewed the evidence of record and concludes that the Veteran is competent to handle the disbursement of her VA benefits. A Field Examination for Supervised Direct Pay was conducted in February 2006 by a VA field examiner. The examiner concluded that, although the Veteran had bad credit, she was able to manage her own money without review. The Veteran was able to handle her funds, understood her financial situation, applied funds to needs with reasonable prudence, and would not benefit from further VA supervision. Subsequently, the Veteran was afforded a VA examination in May 2006. In assessing her competency, the examiner noted that she had some difficulty explaining how she manages to cover the expenses of a family of 5 with an income of $3,000 per month. Moreover, the examiner stated that the Veteran's presentation during the interview was so vague and guarded that she was unable to accurately assess her level of competency. Therefore, the examiner referred the Veteran for a neuropsychological examination which would help to more objectively determine her competency. However, the Veteran did not show up for the scheduled appointment 2 weeks later, or for the re-scheduled appointment in June 2006. The VA field examiner issued another report in March 2007 wherein she noted that the Veteran was able to tell her the sources of her income and the amounts. She was further able to tell her the types and amounts of household expenses, and it appeared that she was paying her household bills. The Veteran had independent decision-making skills and was not having any problems with memory loss. The field examiner observed that the Veteran had been doing fine in terms of money management ever since her divorce, and that she was able to manage her financial affairs without supervision. The Veteran was afforded another VA examination in May 2007 with the same VA examiner. The examiner noted that she was oriented to person, place, and time, and that her though processes were vague, but without evidence of psychosis. The examiner further noted that the Veteran continued to have major financial problems due to poor judgment and inability to control or prioritize her spending or to control the spending of other people in the household. As a result, she was in financial trouble. She also had a record of not being medically compliant and although the Veteran seemed somewhat calmer, her confusion contributed to her lack of competence in both financial matters and medical matters. Therefore, the examiner opined that the Veteran was not competent to manage her own affairs. At an October 2008 Decision Review Officer conference, the Veteran said that she did not get along with the VA examiner and requested a new VA examination with a different examiner, which was afforded in November 2008. The VA examiner reviewed the claims file, including the Field Examination report from March 2007. The examiner noted that the Veteran continued to have financial problems due to poor judgment and inability to prioritize spending. She also indicated that she had been late on bills including rent and phone bills. The Veteran was vague in her descriptions of her bills and was unsure of the exact amount. She continued to utilize credit cards and increase her debt. Thus, the examiner concluded that the Veteran continued to be incompetent to manage her own affairs. The Veteran testified at the June 2010 Board hearing that she had begun treating at Magellan in 2003, and submitted a February 2009 prescription note from a doctor at that facility, Dr. P.G., which stated that the Veteran had been seen by the doctor that day and appeared to be basically stable. The treatment records of Magellan were subsequently obtained and associated with the claims file. Although earlier treatment records from 2003 and 2004 indicate the Veteran had limited judgment and delusions, later records support her contention of competency. A January 2007 treatment note from Magellan states that the Veteran was clinically stable, and that her insight and judgment were fair. In February 2008, the doctor noted that her judgment and insight were good, and that she continued to be fairly stable. A February 2009 Behavioral Health Update and Review Summary states that the Veteran was able to make informed decisions regarding treatment, finances, and confidentiality. This conclusion was repeated in a March 2010 Behavioral Health Update and Review Summary. A September 2009 note indicates that the Veteran was taking her medications properly, to which her improved cognition was attributed. A May 2010 Psychiatric Progress Note indicates the Veteran's severity of symptoms was borderline, that her global mental health was much improved, and it appeared that she was stabilizing. Insight and judgment were fair, and the doctor assessed a Global Assessment of Functioning (GAF) score of 60. GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health and illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Thus, both the Magellan treatment records from 2007, forward, and the 2006 and 2007 VA Field Examination reports tend to support the Veteran's contention that she is competent to manage her own affairs. The Board acknowledges the VA examiners' opinions that the Veteran remains incompetent for VA purposes. However, the Board has placed more probative weight on the opinions of the VA field examiner and the treating physicians from Magellan. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Veterans Appeals stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . . . So long as it provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In addition, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this case, the VA field examiner provided significant detail in her reports supporting her conclusion that the Veteran was competent to manage her finances. Moreover, the Magellan treating physicians saw the Veteran on a regular basis since 2003, and charted her progress to the present. By contrast, the VA examiners spoke with the Veteran on a single (or, in one case, twice) occasion, and did not have the benefit of seeing the Veteran's mental and financial progress. The Board finds, after reviewing the competent evidence of record, that the evidence in favor of continuing the Veteran's rating of incompetency is not clear and convincing, and leaves a reasonable doubt as to her request for rating her as competent. Moreover, after hearing the Veteran's sworn testimony at the Travel Board hearing, as well as her representative's able arguments, the undersigned believes that the benefit-of the-doubt doctrine is applicable in this case, and concludes there is a reasonable doubt as to whether the Veteran has the mental capacity to contract or to manage her own affairs, including disbursement of funds without limitation, and such doubt should be resolved in favor of a finding of competency. 38 C.F.R. §§ 3.102, 3.353. The weight of the competent medical evidence tends to show that the Veteran has the mental capacity to contract or to manage her affairs, including disbursement of funds without limitation. Accordingly, and especially in light of the regulatory presumption favoring a finding of competency, the Board finds that restoration of competency for VA benefits purposes is warranted. ORDER Restoration of competency status for VA benefit purposes is granted. ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs