Citation Nr: 1302663 Decision Date: 01/24/13 Archive Date: 01/31/13 DOCKET NO. 10-20 033 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas THE ISSUE Whether the Veteran is competent for VA benefits purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in North Little Rock, Arkansas, which confirmed a previous finding of incompetency. The Veteran testified before the undersigned Veterans Law Judge at a December 2010 hearing. FINDING OF FACT The Veteran has the mental capacity to contract or manage his own affairs, including disbursement of funds without limitation. CONCLUSION OF LAW The Veteran is competent for VA benefits purposes. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.353 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION 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). There is a presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his 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). 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 not make a determination of incompetency without a definite expression regarding the question by responsible medical authorities. 38 C.F.R. § 3.353(c). Determinations concerning incompetency should be based upon all evidence of record, and there should be a consistent relationship between the percentage of disability, facts related to commitment or hospitalization, and the holding of incompetency. Id. In April 2007, a VA physician noted the appellant's report that he was going broke and spending all of his money on cocaine. The physician opined that the Veteran's prognosis was poor in light of the chronicity of his substance dependence. Based on the April 2007 report, VA in an August 2007 rating decision proposed to find the appellant incompetent to handle VA funds. In a February 2008 VA examination report, a psychiatrist determined that the Veteran was not competent to handle funds because he would continue to use his funds entirely on cocaine. A December 2008 rating decision increased the evaluation for the Veteran's posttraumatic stress disorder to 100 percent, and determined that he was not competent to handle funds. In August 2009 the Veteran requested that he be found competent to handle funds. Soon thereafter several family members of the Veteran wrote letters to VA indicating that the Veteran was not able to handle his finances due to his drug abuse. In September 2009 the Veteran was afforded a VA psychiatric examination. At that time, the Veteran reported that he had stopped using drugs in November 2008. The examining psychologist opined that if the Veteran had in fact stopped using drugs, then he was competent to manage his own affairs. The Veteran submitted a form dated in November 2009 from his psychiatrist indicating that he was capable of contracting or managing his own affairs including disbursement of funds without limitation. In his November 2009 notice of disagreement, the Veteran argued that the continued finding of incompetency was based upon stale information. In May 2010 the Veteran submitted various letters from family members indicating that the appellant was no longer using drugs and was able to handle his own affairs. In a letter dated in November 2010, the Veteran's psychiatrist wrote that the Veteran's last three random urine drug screens were negative and that at this time he is capable of handling his own affairs, including those related to handling funds. At a December 2010 hearing, the Veteran testified that he was no longer using drugs. He stopped using drugs in early 2009. He briefly relapsed in February 2010 after his son died, but this was a short-lived relapse and he was clean again. He completed a drug treatment program. He was currently in treatment with his psychiatrist, whom he had been seeing for about two years and who opined that he was competent. The Veteran also noted that family members who had previously indicated that he was incompetent had changed their opinions and believed that he could handle his VA funds. In March 2011 the Veteran's psychiatrist wrote another letter again opining that the Veteran was competent to handle his own affairs, and additionally relating that a recent random urine drug screen of the Veteran was negative. While the evidence indicates that the Veteran was incompetent to handle his funds at the time the initial determination, the evidence indicates that the Veteran has improved since that time. While he formerly spent most of his VA compensation on cocaine, recent random urine drug screens were negative and the Veteran and family members denied that he was currently using drugs. The Veteran's psychiatrist wrote letters indicating that the appellant was competent to handle his own funds in November 2010 and in March 2011. Given his psychiatrist's opinion, it cannot be said that the evidence clearly and convincingly shows that the Veteran is still incompetent. The above decision constitutes a complete grant of the benefit sought. Therefore, a discussion of whether the requirements of the Veterans Claims Assistance Act of 2000 were met is unnecessary. ORDER The Veteran is competent for VA benefits purposes. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs