Citation Nr: 1300800 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-40 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the Veteran is mentally competent to handle disbursement of funds for Department of Veterans Affairs benefit purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from July 1991 until January 2001. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. On his October 2009 Substantive Appeal (Form VA-9), the Veteran requested a hearing before a Member of the Board in connection with his claim. The Veteran was notified that his hearing was scheduled for October 2011. In August 2011, the Veteran requested his hearing be rescheduled and the hearing was rescheduled for September 2012. Prior to the hearing in September 2012, the Veteran again requested the hearing be rescheduled. The hearing was rescheduled for December 3, 2012. The record reflects that the Veteran failed to report to the December 2012 hearing. There are no other hearing requests of record, so the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704(d) (2012). The record reflects the Veteran seeks relief from the provision prohibiting possession of firearms under the Brady Handgun Violence Prevention Act. This issue has not been fully developed by the Agency of Original Jurisdiction as described in the Adjudication Procedure Manual, M21-1MR, Part III, Subpart v, Chapter 9, Section B, parts j-q. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT It is clearly shown and supported by definite medical opinion that the Veteran is not competent to manage his own funds without limitation. CONCLUSION OF LAW The Veteran is not mentally competent for the purpose of receiving direct payment of his VA benefits. 38 U.S.C.A. §§ 5107, 5502 (West 2002); 38 C.F.R. § 3.353 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In general, the Veterans Claims Assistance Act of 2000 (VCAA) sets forth VA's duties to notify and assist claimants regarding their claims. See 38 U.S.C.A. §§ 5103, 5103A. The term "claimant" as used in the VCAA applies only to claims for benefits under chapter 51 of title 38 of the U. S. Code. The duty to notify and assist provisions of the VCAA are not for consideration in competency determinations, as 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. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Accordingly, the VCAA does not apply to this case. 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. The Merits of the Claim The Veteran specifically seeks relief from the prohibition of possession of firearms under the Brady Handgun Violence Prevention Act. As noted in the Introduction, development of this issue has not been completed; however, the Board notes that a decision on the issue of relief may not be made prior to a decision concerning whether the Veteran is competent for VA purposes. See M21-1MR, Part III, Subpart v, Chapter 9, Section B, part l. As the claim concerning competency has been perfected and a decision is required prior to deciding the issue of relief, the Board will address whether the Veteran is mentally competent to handle disbursement of funds for Department of Veterans Affairs benefit purposes. Under VA regulations, a mentally incompetent person is one who because of injury or disease lacks the mental capacity to contract or to manage his own affairs, including disbursement of funds without limitation. 38 C.F.R. § 3.353(a) (2012). The RO has the sole authority to make official determinations of competency and incompetency for the purpose of, among other things, disbursement of benefits. 38 C.F.R. § 3.353(b); see also, 38 C.F.R. §§ 13.55, 13.56, 13.57 (outlining the regulations pertaining to direct payment and the appointment of fiduciaries). Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, the RO 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 (reiterating VA's long-standing policy to resolve all doubt in favor of the Veteran). In this case, a rating action proposing a finding of incompetency was issued in March 2009 and the Veteran was notified that he could request a hearing to present evidence or argument on this issue. Subsequently, the RO contacted the Veteran by telephone in April 2009 to explain the consequences of a finding of incompetency. The RO found the Veteran was not competent in a July 2009 rating decision. In short, the RO complied with all due process provisions of 38 C.F.R. § 3.353(e). The evidence for consideration includes service treatment records, VA outpatient treatment records, private medical records, and reports of VA examinations. A longitudinal review of the record establishes, clearly and convincingly, that the Veteran is not competent for the purpose of managing the disbursement of his VA benefit. Service treatment records reflect the Veteran underwent a medical evaluation board and was discharged with several disabilities, including a cognitive disorder associated with chronic fatigue syndrome, severe social and industrial adaptability and impairment. The September 2000 neuropsychological evaluation conducted in connection with the medical evaluation board concluded that the Veteran had evidence of problems in cognitive functioning that were consistent with those noted in others with chronic fatigue syndrome and depressive disorder. The Axis I diagnosis was cognitive disorder, not otherwise specified as manifested by a memory problem (susceptibility to proactive interference and decreased ability to encode and store information). The September 2000 evaluation noted the Veteran denied difficulty with handling money. A July 2001 VA neuropsychological functioning evaluation and examination reflected the Veteran complained of memory deficits, along with severe chemical sensitivity and neurogenic syncope associated with an anthrax vaccination. The physician noted the prior neuropsychological evaluation which found the Veteran had memory and sequencing impairment along with poor motor speed, depression and anxiety, neurogenic orthostatic hypotension, drop attacks, irregular heartbeat and chronic fatigue injury. Since his discharge from service the Veteran was unable to work or be unsupervised. The Veteran's memory continued to decline and he was grossly geographically disoriented, sometimes even in his own home. During the evaluation, the Veteran impulsively left and the police had to be called to find him. He was eventually located in the parking lot and explained that he had no idea how to return to the office. The examiner indicated the Veteran was alert and attentive to testing but was mildly disoriented to date. The Veteran was concerned about his cognitive problems. Thought process was slow. He showed poor recognition of errors and was typically unable to correct mistakes. There was no perplexity in understanding instructions and no perseveration or confabulation was observed. Attention, concentration and mental tracking testing indicated that repetition of digit strings was mildly deficient and slightly inferior to digit reversal. He was unable to reverse recite the months of the year. He made two errors in 14 iterations of subtraction. He was slower on a more complex trial with greater demand for cognitive flexibility, but that trial was error free. Testing of new learning and memory indicated acquisition of a short story was moderately poor after one exposure and he gained a few details after another trial. After 30 minutes he recalled very little of the story, scoring in the severely impaired range. He showed poor ability in learning a list of 12 semantically clustered words and remembered none of the words after 20 minutes, indicating he was severely compromised. He recognized only 5 of 12 words in a separate list without false positive identification, also indicting severe impairment. Visual memory was severely impaired for incidental recall, mildly to severely impaired for learning trials and was severely deficient for delayed recall. Remote memory for historical information was moderately poor. The Veteran showed moderately poor ability in mental arithmetic that improved slightly with use of paper and pencil. The examiner concluded that orientation, repetition, writing, digit span, simple visuomotor scanning, figure copying, clock organization, fund of knowledge and written arithmetic were mildly impaired. Moderate deficits were observed in generative naming, logical verbal new learning, remote memory for historical information, visual organization and mental arithmetic. Severe impairment was found in auditory comprehension, reverse recitation in time and accuracy, delayed logical verbal memory, new learning, delayed recall, delayed recognition of a word list, visual incidental, and delayed recall clock setting, and vocabulary. The examiner explained the findings were grossly in agreement with the testing completed previously and showed more deficits in generative naming, digit span, visual memory and visual organization. The examiner concluded the Veteran was clearly severely functionally impaired. A May 2002 neuropsychological evaluation conducted by the Department of the Air Force reflected that the Veteran reported significant cognitive and emotional difficulties, including problems with sustained attention and concentration, reading comprehension, mental confusion, memory lapses, impaired problem solving and decision making skills, spatial disorientation, and expressive language difficulties. The Veteran explained he relied on others to perform various activities he used to do himself, such as driving, picking out clothes to wear, and managing finances. Mental status examination at this time indicated the Veteran was alert and generally oriented but he missed the date by three days. He had feelings of anxiety and depression. Speech was somewhat dysprosodic and he displayed occasional paraphasic errors. The Veteran was on the borderline range of intellectual functioning on the Wechsler Adult Intelligence Scale-III. His working memory and processing speed index scores for this test were noted to be in deficient range. The Halstead Impairment Index strongly suggested neuropsychological impairment. Memory testing was also generally impaired. The responses to the Beck depression inventory suggested he was struggling with severe feelings of depression. The physician noted that it appeared the Veteran was generally experiencing more cognitive and emotional problems than two years ago and the current state represented a decline from a previously higher level of functioning. The Veteran had moderate to severe impairments on a wide range of cognitive functions including working memory, cognitive processing speed, verbal abstract reasoning, mental arithmetic, auditory and visual memory, visual scanning, perception, comparison and organization. He had mild impairment on visual abstract reasoning, visuomotor construction, psychomotor problem solving, verbal productivity, confrontation naming, and sustained attention. The physician explained the Veteran's condition had declined as tests two years ago, which had scores within normal limits or only mildly impaired, were now moderately to severely impaired. The physician indicated the Veteran's prognosis was rather poor in terms of neuropsychological functioning. The Veteran was afforded several VA examinations to assess the severity of his disabilities in October 2008. A VA aid and attendance examination indicated that the Veteran was not capable of managing benefit payments in his own best interests without restriction and indicated the Veteran's wife managed those affairs. During the October 2008 VA examination to assess the severity of the Veteran's chronic fatigue syndrome, the examiner noted that the Veteran had a history of cognitive impairment but then states "does not significantly impaired." A December 2008 VA examination noted that the medical records reflect the Veteran was diagnosed with dementia, not otherwise specified, manifested by the development of multiple cognitive deficits which caused significant impairment in social and occupational functioning. The Veteran reported that he had volunteered at 2 separate police departments but during this time he made a number of mistakes due to his memory and concentration problems. These mistakes included forgetting to wear his bullet proof vest on occasion, forgetting to load his gun on occasion, parking the cruiser temporarily on railroad tracks while following suspects which resulted in the cruiser being hit by a train, and failing to control the police cruiser on another occasion. Because of the number of serious mistakes he discontinued his volunteer work. During this examination the Veteran indicated that his wife handled all the finances, prepared all food and supervised his medication. He explained his wife controlled all finances for the last few years after it cost them hundreds of dollars in late fees for late payments and bounced checks when he managed the finances. He indicated he had difficulty concentrating and at times counting change in his head and he felt more comfortable having his wife managing all finances. He explained he would not be averse to her formally becoming the payee. He explained he could attend to his hygiene but required supervision while bathing. His wife did most household chores including shopping, cooking, cleaning, and laundry; however, the Veteran vacuumed. The Veteran's subjective complaints at this examination included great difficulty with concentration and memory, and difficulty with attention, focus, and distractibility causing him to become easily mentally fatigued. He described difficulty with reading comprehension and reported mental confusion, memory lapses for conversation and events, and difficulty remembering lists. He reported difficulty with problem solving and decision making and relied heavily on the support of his wife. He was fearful his memory difficulty was progressing and explained he had been diagnosed with dementia due to numerous cognitive deficits. Mental status examination reflected he presented with cognitive fatigue and appeared to have difficulty becoming emotionally and mentally exhausted in the process of assessment. The examiner noted that toward the end of the assessment, the Veteran had great difficulty focusing and even comprehending some of the feedback. He was aware of the month and year, but was unaware of the specific date or season and was unable to state the county that he was in. Memory was impaired for recent and remote history and he had difficulty recalling names and dates as well as specifics concerning his treatments. He displayed serious difficulty with concentration, focus, and distractibility, and showed some difficulties with simple calculations. Intelligence and fund of knowledge was felt to be average. He appeared to have some ability for self introspection but showed signs of quick mental fatigue and became easily overwhelmed. He had significant difficulties with executive functioning such as planning and organizing. The examiner indicated that although the Veteran had a number of cognitive deficits which could be best evaluated by additional neuropsychological assessment, it was not felt to be necessary in order for him to address the question of competency. The examiner concluded that the Veteran's ability to manage financial affairs to the best of his ability was felt to be compromised by his service-connected conditions. He had significant cognitive deficits, specifically difficulty in concentration, planning, memory, and forgetfulness, that resulted in bounced checks and late payments. Since that time, the spouse managed all finances. He continued to need supervision and reminders for tasks like shaving, taking medication, attending appointments, or remembering tools needed to complete tasks. The examiner explained that with such chronic memory difficulties it was highly likely he would make mistakes in finances as well as repeat mistakes of bouncing checks and making late payments. The examiner noted that both the Veteran and his spouse indicated a preference that she continued to manage money and the Veteran was not averse to having her formally make the payee. The examiner noted the Veteran was not able to provide specific information concerning income and expenditures. Although the inability to remember the expenditures can be best explained by lack of involvement in paying bills for a number of years, the examiner felt the cognitive deficits were such that it was more likely than not he would have significant difficulties paying all the bills in a timely and financially responsible manner. Therefore, the physician recommended that payeeship be established. VA outpatient treatment records also reflect cognitive impairments. The treatment records include a diagnosis of vascular dementia. Additionally, an August 2002 record noted the Veteran's mother called and noted her son experienced episodes of delirium where he wandered off and was unaware of where he was going. However, an April 2002 record reflects the Veteran did not note worsening memory problems and indicated he could continue to perform activities of daily living. Here, the presumption of competency is rebutted by the most probative evidence. This evidence is clear and convincing. 38 C.F.R. § 3.353(d); see also 38 C.F.R. § 3.102. The competent and probative evidence overwhelmingly confirms that he is incapable of managing his finances. In his October 2009 Substantive Appeal, the Veteran contends that he was found incompetent based solely on his statements that he was late with some bills. He argues that although he made mistakes with finances in the past, he had been working with his wife on finances and problems have been resolved with better communication. He explained it was years since they had any problems with their finances and he should have elaborated and explained this better to the VA examiners. The Board has considered the written contentions of the Veteran with regard to competency. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, the Board finds that these statements are outweighed by the medical opinions of record that he is not competent to manage his financial affairs. As outlined above, the Veteran has a long history of cognitive impairment, and specifically has had trouble with memory and concentration. Although some records, such as the September 2000 and April 2002 records, indicate he could perform activities of daily living, and thus suggest he could manage his finances, the evidence as a whole reflects the Veteran's cognitive functioning has declined significantly since 2002. Indeed, the record reflects the Veteran requires reminders to perform basic activities of daily living, such as shaving, and taking medication. Additionally, the evidence indicates the Veteran began having difficulties with mental arithmetic as early as July 2001. By May 2002, the Veteran's spouse was handling the household finances. Most significantly, after reviewing the entire record and considering the effects of the Veteran's disabilities, the October 2008 VA examiner concluded that the Veteran's cognitive deficits would make timely and financially responsible payment of bills unlikely. Furthermore, the Veteran generally does not contend he is capable of handling his finances without supervision. During the October 2008 VA examination he indicated he would be okay with his wife serving as payee of his VA benefits. In an August 2009 statement he explained his wife took over the bills a few years ago and he trusts her to handle the funds. He indicated she did a great job. In this statement he indicated that he was requesting relief of firearms prohibitions and indicated that the VA should "assign my wife...to manage my benefits." Indeed, the majority of the Veteran's arguments over the course of the appeal centers on his request for relief from the prohibition of firearms under the Brady Handgun Violence Prevention Act. The opinions rendered after a full review of the Veteran's history and current financial habits conclude that the Veteran is not competent to manage his own funds without limitation. A finding of incompetency is consistent with the long-standing diagnosis of chronic fatigue syndrome with associated cognitive disorder, for which the Veteran is in receipt of a total disability evaluation. Accordingly, the Board finds that the presumption of competency has been rebutted and finds that the Veteran is not competent for the purpose of receiving direct payment of his VA benefits. ORDER The Veteran is not competent to manage his own financial affairs without limitation and direct payment of VA benefits is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs