Citation Nr: 1307977 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-06 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether the Veteran is competent for VA disability benefits purposes. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to September 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran contests VA's finding that he is incompetent for the purpose of direct receipt of his VA compensation benefits. The Veteran was found incompetent by a rating determination in August 2003. At that time, a VA social worker stated that the Veteran had a 100 percent rating for schizophrenia, that he had been discharged from VA psychiatric treatment in October 2002, with a diagnosis of schizoaffective disorder and cocaine, alcohol, and marijuana dependence; and re-admitted in later in October 2002 for VA psychiatric treatment. It was noted that since 1988, he had been an inpatient 44 times for psychiatric and substance abuse problems, and that he had been in the domiciliary for substance abuse treatment nine times, with short periods of sobriety. The social worker stated that the Veteran had not been able to manage his VA compensation and continued to abuse illicit drugs and alcohol. A fiduciary was recommended to manage his funds. A VA October 2002 psychiatry progress report indicated that this was one of many repeated psychiatric admissions for the Veteran. The VA examiner stated that the Veteran has not been stable for any significant length of time because of ongoing substance dependence problem. The VA examiner reported that the Veteran was unable to secure a therapeutic living situation for himself in the community or utilize his finances in his own best interest. The VA examiner concluded that the Veteran was unable to handle his own finances in his best interest. A fiduciary was recommended by the treatment team to assist the Veteran in that respect. The evidence of record subsequent to the appointment of the fiduciary indicates that the Veteran was enrolled in a vocational rehabilitation program and is receiving continuing care. There is conflicting information regarding the usage of alcohol and drugs. He was employed in 2007, but left his job due to conflicts with his supervisor and missing work. 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 record does not indicate that the Veteran has been afforded a current VA examination to determine his competency to manage VA benefit payments. VA will not make a determination of incompetency without a definite expression regarding the question by the responsible medical authorities. 38 C.F.R. §§ 3.159, 3.353(c) (2012). The Veteran has requested VA obtain all VA treatment records for him since 2002. The records obtained are dated beginning in 2007. In a July 2008 mental health consult, it was noted that the Veteran has had multiple inpatient psychiatric admissions, with the most recent in 2005. In recent correspondence to VA, the Veteran indicated that he was receiving current treatment at the VAMC Hampton Roads. On remand the RO must ensure that all VA treatment records dated from 2002 to the present are associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain all pertinent VA records from 2002, to include treatment records from the VAMC Hampton Roads. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After the Veteran responds and all available records and/or responses from each contacted entity are associated with the claims file, the Veteran must be afforded a psychiatric examination to address the Veteran's competency to manage his VA benefit payments. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. Based on the results of the examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran is competent to handle the disbursement of VA funds. A complete rationale for the opinion must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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).