Citation Nr: 1302260 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-28 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Competency to handle of disbursement of funds. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from July 1974 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which determined that the Veteran was not competent to handle disbursement of VA funds. 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 Board finds it necessary to remand the case to the agency of original jurisdiction (AOJ) for additional development and due process considerations. 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. 38 C.F.R. § 3.353(a) (2012). 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). 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. 38 C.F.R. §§ 3.102, 3.353(d) (2012). By way of background, the Veteran was awarded nonservice-connected pension effective September 15, 2005. He was, in part, found to be totally disabled due to major depressive disorder. A November 2005 VA psychiatric examiner diagnosed the Veteran with moderate major depressive disorder and alcohol dependence in early remission. The examiner stated that he believed that the Veteran should (sic) be his own payee given his alcohol dependence and remote history of significant drug problems. The examiner also stated that he did not believe it would in the Veteran's best interest for him to have unlimited access to any funds that he may receive despite being sober since June 2005. Given the statement from the November 2005 VA examiner, the RO proposed to find the Veteran incompetent to handle disbursement of funds. However, in January 2006, one of the Veteran's treating VA psychiatrists indicated that the Veteran was fully competent to manage his own funds. Additionally, a VA social worker also found that the Veteran was competent to manage his own VA funds. In light of this evidence, the RO determined that the Veteran was considered competent. In April 2008, the Veteran underwent a VA aid and attendance examination by a VA psychiatrist. The examiner provided Axis I diagnoses of: alcohol dependence, reported to be in remission for approximately one month; mood disorder, not otherwise specified (NOS), with depressive, anxious, and hypomanic symptoms; and cognitive disorder, NOS. In assessing the Veteran, the examiner gave the opinion that the Veteran may not be fully capable of managing his own financial affairs as his judgment has led him to use it for alcohol purchases. Subsequently, in June 2008, the RO in San Diego, California, proposed a finding of incompetency. In the September 2008 rating decision, after the Veteran was notified of this proposal, the Denver RO implemented the proposal finding that the Veteran is not competent to handle disbursement of funds. This decision forms the basis of the appeal. In response to the incompetency finding, the Veteran submitted an October 2008 letter from a social worker and care coordinator at the VA Medical Center (VAMC) in Hot Springs, South Dakota. The letter indicated that the Veteran was admitted to the facility in August 2008 for a substance abuse program. The providers found the Veteran to be of sound mind. They noted that the Veteran continued to work his aftercare program and they supported the Veteran's attempt to return control of his financial planning and managing other financial affairs. An October 2008 letter from the director of Colorado Veterans for Housing was also submitted. The director noted that the Veteran had lived in a transitional housing program from April 2006 to August 2008 and had always paid his rent on time and in full. The Veteran also put extra money into an in-house savings account. Despite the Veteran's issues with alcohol, he had maintained his apartment and managed his living expenses. The director was confident that the Veteran would maintain his sobriety and improve his health issues. The director also did not feel that the Veteran needed a third-party payee and recommended that the Veteran take care of his own finances. Based on this evidence, there is some doubt as to whether the Veteran is incompetent to manage his affairs. The April 2008 VA examiner stated only that the Veteran may not be fully capable of managing his own financial affairs as his judgment has led him to use it for alcohol purchases. This opinion does not reach the high hurdle of clear and convincing evidence. Additionally, the two October 2008 letters reflect that those treating and housing the Veteran as a result of his alcohol dependence believed that he should manage his own funds. Nevertheless, since that time, the Veteran has been hospitalized on multiple occasions for alcohol use. A review of the paper claims file and Virtual VA folder reveals that he was hospitalized or an inpatient at VA facilities in August 2008, March 2009, October 2009, January 2010, and December 2011. In July 2009, one of the Veteran's treating VA psychiatrists noted that he would not help reverse the Veteran's incompetency finding given his history of severe alcohol dependence, unemployment, and homelessness. The more recent evidence reflects that the Veteran may indeed lack the mental capacity to contract or to manage his own affairs, including disbursement of funds without limitation. However, there is not currently a definite expression regarding the question of incompetency. See 38 C.F.R. § 3.353(c). Consequently, the Board finds that a remand is necessary for a VA examination to properly evaluate the Veteran's mental capacity. See 38 C.F.R. § 3.353(b)(3) (referring to the provisions regarding reexaminations in 38 C.F.R. § 3.327(a)). It appears that the Veteran receives regular treatment at the Denver, Fort Meade, and Hot Springs VAMCs. Updated treatment records, including hospitalization records, should be obtained in light of the remand. Furthermore, certain due process matters must be addressed by the AOJ on remand. This pertains to whether the Veteran was sent proper notification of certain correspondence to his correct mailing address. First, the most recent supplemental statement of the case (SSOC), dated in October 2009, was returned as undeliverable after it was sent to the Veteran. The mailing address used for the SSOC was the Hot Springs VAMC, but he was not an inpatient at that facility when the SSOC was mailed. When a SSOC is issued, it is to be furnished to both the Veteran and his representative. 38 C.F.R. § 19.31 (2012). The SSOC will be forwarded to the Veteran's latest address of record. See 38 C.F.R. § 19.30 (2012) (pertaining to statements of the case). Because due process calls for the Veteran to be mailed an SSOC to his latest address of record and the October 2009 SSOC was not sent to the correct address, the AOJ must resend the SSOC to the Veteran's correct address on remand. Moreover, in July 2009, the Veteran requested to have hearing before a member of the Board sitting at the local RO. In March 2011, he was sent a letter notifying him that a Board hearing had been scheduled for April 1, 2001 at the Denver RO. The Veteran failed to attend the hearing. However, the mailing address for the hearing notification was sent to an address he had not used for several years and also did not include an apartment number. Because the Veteran may not have received proper notice of his scheduled hearing, the AOJ must send him a new letter and ask him if he still wishes to attend a Board hearing for his appeal. The Board notes that correspondence in Virtual VA, dated in January 2013, shows that the Veteran has a new completely different mailing address than previously noted in the paper claims file. Accordingly, this case is REMANDED for the following actions: 1. Take the necessary steps to verify the Veteran's current mailing address. Forward a copy of the October 2009 SSOC to his latest address of record. 2. Obtain the Veteran's more recent treatment records (since October 2009) from the Denver, Fort Meade and Hot Springs VAMCs, and associate the records with the claims folder. 3. Thereafter, schedule the Veteran for an appropriate VA examination to assess his competency. The examiner must be given full access to the Veteran's complete VA claims file and Virtual VA file for review. The examiner must specifically note on the examination report whether the Veteran's VA claims file, to include a copy of this remand, and Virtual VA file were reviewed. The examiner should provide an opinion as to whether the Veteran lacks the mental capacity to contract or to manage his own affairs, including disbursement of funds without limitation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After the requested report has been completed, it should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned for corrective action. 5. After undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a new SSOC and afford them an opportunity to respond. 6. Finally, ask the Veteran if he still wishes to attend a Board hearing for his appeal. If so, schedule the Veteran for a videoconference hearing or a Travel Board hearing before a member of the Board. Notify the Veteran and his representative of the date and time of the hearing. If no hearing is requested, return the claims file to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).