Citation Nr: 1312191 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 12-21 108 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Fiduciary Hub in Lincoln, Nebraska THE ISSUE Whether the appointment of a fiduciary to manage the Veteran's VA benefits was proper. (The issue of entitlement to an effective date earlier than December 30, 2008, for the award of service connection for paranoid schizophrenia is the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Douglas J. Roskinski, Attorney at Law ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from February 1972 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and May 2011 determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By these determinations, the RO appointed fiduciaries S.H. and C.I., respectively, to manage the Veteran's VA benefits. Local jurisdiction is currently with the Lincoln Fiduciary Hub. This appeal was processed using both the paper claims file system and the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of the electronic record. FINDINGS OF FACT 1. A fiduciary is warranted to manage the Veteran's VA benefits. 2. The Veteran's sister D.A. has indicated that she does not wish to be appointed as the Veteran's fiduciary. 3. The RO's certification and appointment of C.I. as the Veteran's paid federal fiduciary was made after a field examination; there has been appropriate investigation and supervision of the fiduciary; and there has been no indication of misuse of funds or other impropriety. CONCLUSION OF LAW The appointment of a fiduciary to manage the Veteran's VA benefits was proper. 38 U.S.C.A. §§ 5502, 5506, 5507 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.850, 13.2, 13.55, 13.64, 13.100, 13.105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Background By a December 2009 rating decision, the RO granted service connection for paranoid schizophrenia. At that time, the RO awarded a total (100 percent) rating for the disability and found the Veteran to be incompetent for the purpose of managing VA payments. A finding of incompetency was proposed by the RO in a prior rating decision dated in July 2009. The Veteran did not appeal the finding of incompetency and a request for appointment of a fiduciary was made later that month. In February 2010, after a field examination was conducted, the RO appointed S.H. as fiduciary to manage the Veteran's VA benefits. Later in February 2010, the Veteran through his sister, D.A., submitted a notice of disagreement (NOD) with the appointment of S.H. as the Veteran's fiduciary. The Veteran contended that his sister should be the fiduciary as he gave her his general power of attorney, which includes the management of his finances. He maintained that all VA benefits due to him should be forwarded to his sister. At the time of the NOD, it was VA's policy that the determination of whom to appoint as fiduciary to manage VA benefits of a beneficiary was a matter within the sole discretion of the Secretary of VA and outside the jurisdiction of any court. See, e.g., VA's Adjudication Procedures Manual, M21-MR, Part XI, Subpart 2, sec. E(26)(b) ("The designation and removal of a fiduciary are responsibilities resting solely within the authority of [VA]. These actions are not subject to appeal.") (2013). As a result, the RO informed the Veteran that his NOD with the appointment of the fiduciary would not be accepted. In April 2010, in response to these circumstances, the Veteran filed with the United States Court of Appeals for Veterans Claims (Court) a petition for extraordinary relief in the nature of a writ of mandamus. In an April 2011 decision, the Court found that all the conditions that must be met prior to the issuance of a writ had been satisfied and that the Veteran was clearly and indisputably entitled to appeal to the Board the RO's decision to appoint a fiduciary. In light of this determination, the Court ordered the Secretary of VA to issue a statement of the case (SOC) based on the Veteran's NOD with the appointment of the fiduciary. In December 2011, the RO issued an SOC to comply with the Court's April 2011 Order. Notably, in May 2011, prior to the issuance of the SOC, the RO appointed C.I. as the Veteran's fiduciary in place of the previous fiduciary S.H. The Veteran, through his representative, submitted an NOD with the appointment of the successor fiduciary as well. The Veteran's contentions remain the same regarding this second appointment. Later in December 2011, the Veteran submitted a substantive appeal thereby perfecting his appeal as to the issue of whether the appointment of a fiduciary to manage the Veteran's VA benefits was proper. Accordingly, in view of this procedural history, including the Court's April 2011 decision, the issue is properly before the Board. II. Duty to Notify, Duty to Assist and Due Process Considerations VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate certain claims such as those for compensation, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5103; 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA does not apply to all claims and the Court has carved out exceptions where the provisions of the VCAA are not applicable, particularly when the issue for consideration does not pertain to a claim for benefits under chapter 51 of title 38 of the United States Code. The Court has held that the VCAA is not applicable to claims for waiver of overpayment or to motions based on clear an unmistakable error. See Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001). In Sims v. Nicholson, the Court held that 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. 19 Vet. App. 453, 456 (2006). Therefore, the notice and assistance provisions of the VCAA do not apply to claims to restore competency. Id. Similar to the issue of competency, the provisions concerning fiduciaries are set forth in chapter 55. See, e.g., 38 U.S.C.A. § 5502 (West 2002 & Supp. 2012) (granting authority to the Secretary to appoint fiduciaries). Thus, the issue on appeal pertains to how the Veteran's benefits will be distributed under chapter 55. Therefore, the Board finds that the VCAA does not apply to the issue of whether the appointment of a fiduciary to manage the Veteran's VA benefits was proper. Nevertheless, the Veteran has had the opportunity to participate in the prosecution of the claim. He was notified of RO's determinations regarding the appointments of a fiduciary and he was provided with the relevant laws and regulations in the December 2011 SOC. The Veteran's attorney representative has submitted argument on the matter during the course of the appeal. The opportunity to present testimony at a Board hearing was declined in a December 2011 substantive appeal. Although evidence has been added to the claims file since the December 2011 SOC, the evidence of record at the time of the SOC is sufficient to decide the claim. Notably, in an October 2012 brief, the representative stated that there is no issue of material fact, the issues are all questions of law, and a remand for further development is not required. Thus, the Board finds that the Veteran has waived any additional review of the case by the RO and wishes to have the Board decide the claim. Accordingly, the Board also finds that the Veteran has been afforded due process considerations in conjunction with this claim and the Board may proceed to address the issue on the merits. III. Appointment of a Fiduciary A fiduciary is a guardian, curator, conservator, committee, or person legally vested with the responsibility or care of a claimant or of a beneficiary, or any other person having been appointed in a representative capacity to receive money paid under any of the laws administered by the Secretary for the use and benefit of a minor, incompetent, or other beneficiary. 38 U.S.C.A. § 5506 (West 2002 & Supp. 2012). A fiduciary is a person or legal entity charged with the duty of managing the estate of an incompetent beneficiary. M21-MR, Part XI, Subpart i, sec. A(4)(f). Where it appears to the Secretary that the interest of the beneficiary would be served thereby, payment of benefits under any law administered by the Secretary may be made directly to the beneficiary or to a relative or some other fiduciary for the use and benefit of the beneficiary, regardless of any legal disability on the part of the beneficiary. 38 U.S.C.A. § 5502. See 38 C.F.R. § 3.850 (2012). The responsibilities of VA's fiduciary program include: assessing the competence and personal welfare of beneficiaries; determining, selecting, and qualifying a fiduciary; arranging utilization of benefit funds; protecting assets; ensuring the entitlement rights of beneficiaries; assuring potential Federal and state benefits; acting on behalf of supervised direct payment beneficiaries; protecting Federal funds; determining misuse; conducting onsite review of multi-fiduciaries; and non-fiduciary responsibilities. M21-MR, Part XI, Subpart i, sec. A(1). The implementing regulations are found in 38 C.F.R. §§ 13.1 through 13.111 (2012). In the Veteran's case, the evidence shows that the appointment of a fiduciary is warranted and, therefore, VA has not abused its discretion in appointing a fiduciary. In June 2009, a VA psychologist determined that the Veteran was clearly incompetent for VA purposes as he is unable to manage his money in his own best interests. As noted previously, the RO found the Veteran to be incompetent to handle disbursement of funds in the December 2009 rating decision and the Veteran did not appeal the decision. In the April 2011 decision, the Court noted that VA's competency determination is not an issue, that the Veteran did not contest VA's determination, and that a VA fiduciary will be appointed if a beneficiary is determined to be incompetent to handle VA benefits to which he is entitled. Field examinations may be conducted by the Veterans Service Center Manager, or other RO personnel to conduct investigations and examine witnesses, to include on matters involving the welfare of incompetent beneficiaries. See 38 C.F.R. § 13.2. In this case, field examinations were conducted in February 2010, May 2011, and October 2012. In each instance, it was shown that the Veteran would be taken advantage of if he managed his own funds and that he is only allotted a small amount of money at a time because he would otherwise give the money away to strangers. Thus, based on this information and the determination of incompetency, the appointment of a fiduciary is warranted. Initially, the Veteran, through his sister D.A., agreed that a fiduciary should be appointed, but that the fiduciary should be D.A. rather than a stranger. The evidence shows that his sister lives with the Veteran and cares for him as well. Additionally, an August 2009 general power of attorney was submitted whereby the Veteran appointed D.A. as his attorney-in-fact to act in his name with respect to a variety of financial matters, including benefits from military service. Although the Veteran is not married, a family member who lives with him and has a general power of attorney appears to be a potentially suitable fiduciary. This is particularly so as a VA appointed fiduciary is to be encouraged to serve without a commission or fee. See 38 C.F.R. § 13.64. There is no indication that D.A. would charge a fee. See 38 C.F.R. § 13.64(c) (commission may not be authorized to close relatives acting in a fiduciary capacity on behalf of the beneficiary, except under extraordinary circumstances). After the RO appointed C.I. as the fiduciary in May 2011, the RO contacted the Veteran's representative to set up a meeting with the Veteran and his sister to determine whether D.A. would be able to act as the Veteran's fiduciary. In September 2011, the representative was informed that one criterion for appointing D.A. was that she would be required to obtain a surety bond given the size of the Veteran's estate. See 38 C.F.R. § 13.105 (the Veterans Service Center Manager may require a fiduciary to furnish a corporate surety bond in amount determined to be sufficient to protect the interest of the beneficiary). In November 2011, the RO again contacted the Veteran's representative to discuss the matter. It was indicated that VA was not to contact the Veteran or D.A., and that his sister had no interest in being appointed fiduciary. The representative stated that D.A. wanted only to be the payee, "nothing more than a money drop." (emphasis added). After the representative indicated that a fiduciary may not be required at all, it was confirmed that the Veteran's sister D.A. did not want to serve as fiduciary. To the extent that the Veteran's sister could serve as his fiduciary, the process for appointment has been frustrated. Instead, it has been clearly indicated that D.A. does not want to be the fiduciary. Therefore, as to any argument that the Veteran's sister should have been appointed fiduciary instead of C.I. or any other non-family member, the argument fails as D.A. has declined to be appointed as the fiduciary. Consequently, the RO's appointment of a fiduciary was not improper in this regard. In the October 2012 brief, the Veteran's representative asserts that the Veteran's VA benefits should be paid directly to his sister D.A. Essentially, the Veteran's representative is contending that D.A. should be the payee of the Veteran's VA benefits without regard to the fiduciary provisions because she is to whom the Veteran wishes the payments to go and she is his attorney-in-fact pursuant to the general power of attorney. The implication is that VA's fiduciary program is not in the interest of the Veteran, and that VA should not or does not have the discretion to withhold payment directly to the Veteran through his sister as payee. The Board first notes that there are no provisions that require appointment of an attorney-in-fact as direct payee without any other relevant consideration. In the April 2011 Court decision, the concurring Judge noted that VA regulations do not cover the situation where a durable power of attorney-one that is statutorily authorized under state law and signed when the veteran is competent-is in place. See also Solze v. Shinseki, 26 Vet. App. 118, 126 at n.13 (2013) (Lance, J., dissenting in part) (noting that there was legislation previously pending in Congress that would make payments to individuals designated as attorney-in-fact under a durable power of attorney). In the Veteran's case, a general power of attorney rather than a durable power of attorney is in effect for D.A., which would become invalid should the Veteran become disabled or incapacitated. In any case, the Veteran's representative's position is that D.A. should be the payee with no additional oversight. As previously detailed, the primary purpose of VA's fiduciary program is to protect a beneficiary's VA payments so the funds may be used for his benefit. The program offers several safeguards by which to protect a veteran's interests with oversight. As noted previously, a surety bond may be required when a veteran's estate is sufficiently large. See 38 C.F.R. § 3.105. A surety bond is frequently needed to protect the estate of the beneficiary against mismanagement or abuse by the fiduciary. Generally, the amount of the bond must be adequate to cover VA assets remaining in the estate of the beneficiary plus the annual income from VA benefits. See M21-MR, Part XI, Subpart 3, sec. E(22). Another safeguard is seen in the supervision of fiduciaries who have already been appointed. In federal fiduciary cases, the Veterans Service Center Manager may, when he or she deems it necessary for the protection of the beneficiary's interests, require an accounting, informal or informal of VA benefits paid. See 38 C.F.R. § 13.100(a). Even with court-appointed fiduciary cases, VA will take such informal action as may be necessary to assure that the needs of the beneficiary are provided for and VA benefits are prudently administered and adequately protected. See 38 C.F.R. § 13.100(b); see also 38 C.F.R. § 13.104 (accounts of court-appointed fiduciaries). Significantly, an inquiry and investigation of the qualification of a fiduciary is to be made for any certification of a person for payment of benefits of a beneficiary to that person as such beneficiary's fiduciary under section 38 U.S.C.A. § 5502. See 38 U.S.C.A. § 5507 (West 2002 & Supp. 2012). Such inquiry or investigation is to be conducted in advance of a certification, to include a face-to-face interview to the extent practicable, and to include a copy of a credit report issue within one year of the date of the proposed appointment to the extent practicable. See 38 U.S.C.A. § 5507(a)(1). A certification shall also be made on the basis of adequate evidence that certification of that person as fiduciary is in the interest of such beneficiary and the furnishing of any bond that may be required by the Secretary. See 38 U.S.C.A. § 5507(a)(2), (3). Moreover, as part of any inquiry or investigation, the Secretary shall request information concerning whether that person has been convicted of any offense under Federal or State law which resulted in imprisonment for more than one year. If that person has been convicted of such an offense, the Secretary may certify that person as a fiduciary only if the Secretary finds that person is an appropriate person to act as fiduciary for the beneficiary under the circumstances. See 38 U.S.C.A. § 5507(b); see also M21-MR, Part XI, Subpart 2, sec. D(11) (guidelines for initial appointment field examinations for adults, including provisions pertaining to credit reports, criminal background information, and character witnesses). Notably, any specific requirement of the inquiry or investigation may be waived when carried out on an expedited basis for a proposed fiduciary who is the parent of a minor beneficiary, the spouse or parent of an incompetent beneficiary, a court-appointed fiduciary, or when a veteran's benefits to be managed are not large. See 38 U.S.C.A. § 5507(c). Thus, even a spouse or parent of an incompetent beneficiary must be certified as a fiduciary based on an inquiry or investigation even if a portion may be waived. The Veteran's sister is not a person who fits into any of the exceptions for waiving an inquiry or investigation. Furthermore, the requirements may be waived when the prospective fiduciary is serving sufficiently as a VA fiduciary for other individuals. See M21-MR, Part XI, Subpart 2, sec. D(11). In the Veteran's case, while D.A. is the Veteran's sister and attorney-in-fact, the Board finds that these facts alone do not establish her entitlement to status as the direct payee of the Veteran's VA benefits without further participation, qualification and favorable determination through the existing certification process for determining the appointment of a VA fiduciary. VA has the discretion to investigate and appoint a fiduciary and it has not waived that ability, nor has the Veteran requested such a waiver. It has also not been shown why an investigation should be waived or why the other oversight provisions should not apply. A family member, particularly one who has been given a general power of attorney, may be the most appropriate person who should be appointed as fiduciary. Such a person may act in the interest of a beneficiary in most instances. Such a person may nevertheless have a poor credit history or financial problems, a criminal background, poor character, and may refuse to provide an accounting or to certify that he or she will act in the interest of the beneficiary in utilizing the funds. Any of these deficiencies may call into question the person's ability to act as the Veteran's fiduciary. The law states that a beneficiary's fiduciary under 38 U.S.C.A. § 5502 shall be certified by VA under 38 U.S.C.A. § 5507. The Board does not find that direct payment to the Veteran's sister D.A. without certification, including without an inquiry or investigation, or further oversight by an accounting meets the requirements of an appointment as a fiduciary. Such a direct payment would render VA's fiduciary program meaningless. Therefore, the Board concludes that the RO's appointment of a fiduciary instead of the Veteran's sister as direct payee was proper. In the October 2012 brief, the Veteran's representative contends that VA's appointment of a fiduciary and the managing of the Veteran's VA benefits is a violation of the Fifth Amendment of the U.S. Constitution. The representative states that the money from VA benefits is the Veteran's property "as much as is his favorite chair, and is constitutionally protected in the same manner." The United States Court of Appeals for the Federal Circuit has held that there is a property interest in entitlement to VA benefits. See Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009) (holding that entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment). Additionally, the representative raises Tenth Amendment arguments in asserting that VA's actions in the fiduciary process directly conflict with State law in a field traditionally controlled by the States. Congress has decreed that "[t]he Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans." 38 U.S.C.A. § 511(a) (West 2002). There are, however, limitations to this Congressional mandate. In Johnson v. Robison, the United States Supreme Court noted the principle that adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies. 415 U.S. 361, 368 (1974) (citations omitted). The Court has also acknowledged this principle on a number of occasions. See Saunders v. Brown, 4 Vet. App. 320, 326 (1993) (citing Johnson) ("[i]t has generally been thought that the adjudication of the constitutionality of congressional enactments is 'beyond the jurisdiction of administrative agencies,' including the BVA"); see also Giantcaterino v. Brown, 7 Vet. App. 555, 557 (1995) (stating that the Board may express an opinion on a constitutional claim but it is not required to do so). The Court has noted that administrative agencies are entitled to pass on constitutional claims, but are not required to do so. Id. (citing Plaquemines Port v. Federal Maritime Comm'n, 838 F.3d 536, 544 (D.C. Cir. 1988)). The critical role for the administrative agency is to ensure that the necessary factual development has been undertaken to help the court resolve the constitutional issue. See id. Regarding the constitutional questions, in light of the above precedential case law, the Board declines to express an opinion as to the constitutional arguments regarding the statutes and regulations at issue, as the Board has no jurisdiction to remedy the constitutional challenge. Neither 38 U.S.C.A. § 7104 (West 2002), which defines the jurisdiction of the Board, nor 38 U.S.C.A. § 511(a), which defines the authority of the Secretary of VA, confers upon the Board jurisdiction to consider constitutional challenges to statutes enacted by Congress or implementing regulations promulgated by the Secretary. Similarly, the Board does not have the jurisdiction or legal authority to ignore or rule unconstitutional a law, regulation or precedential decision of VA's General Counsel. Hornick v. Shinseki, 24 Vet. App. 50, 52 (2010) ("The Board is 'bound in its decisions by the . . . precedent opinions of the chief legal officer of the Department.'" (quoting 38 U.S.C. § 7104(c))). Notably, the jurisdiction of the Board is different than the jurisdiction of the Court, which is empowered by statute to make determinations regarding constitutional claims. See 38 U.S.C.A. § 7261(a)(1), (a)(3)(B) (West 2002 & Supp. 2012); see also Raugust v. Shinseki, 23 Vet. App. 475, 479 (2010) (noting that the Court has jurisdiction to consider constitutional challenges to statutes and regulations). The Board recognizes that such constitutional challenges must first be made at the agency level to build a factual record or to resolve the dispute on other grounds. Ledford v. West, 136 F.3d 776 (Fed. Cir. 1998). Thus, as outlined by the caselaw cited above, although the Board has the ability to express an opinion on a constitutional claim, the Board has no jurisdiction to remedy a constitutional challenge of a law that is binding on the Board. Such challenge is more appropriate for the Court, which possesses the necessary jurisdiction for constitutional questions. See 38 U.S.C.A. § 7261(a)(1), (a)(3)(B). In Solze, it was indicated that, in cases such as the Veteran's case, the Board can review the actions of the Veterans Service Center Manager for an abuse of discretion and vacate any decision that it determines to be erroneous. 26 Vet. App. at 128 (Lance, J., dissenting in part). Therefore, the Board presumes the constitutionality of the laws in question and has proceeded accordingly. IV. Appointment of C.I. as the Fiduciary The Board will next address whether, in appointing a fiduciary, the RO properly appointed C.I. as the Veteran's fiduciary. As noted previously, in February 2010, the RO initially appointed S.H. as a federal fiduciary to manage the Veteran's VA benefits. Because the RO appointed C.I. as a successor fiduciary in May 2011, the issue of the propriety of the appointment of S.H. as fiduciary is rendered moot. Thus, the Board will focus on the appointment of C.I. In May 2011, a VA field examiner conducted a field examination for the Veteran's case. See 38 C.F.R. § 13.2. The field examiner assessed the Veteran's situation with an in-person interview of the Veteran and family members. It was recommended that a fiduciary continue to be appointed to manage the Veteran's finances and the Veteran's monthly expenses were identified. The fiduciary system was explained to the Veteran and his family. The field examiner also interviewed C.I. by telephone as the potential fiduciary. C.I. is an attorney who has had prior dealings with VA as a paid federal fiduciary for several years and who has been doing a good job according to the field examiner. The criminal background inquiry, credit report request, and character witnesses were waived in view of C.I.'s prior dealings with VA. See M21-MR, Part XI, Subpart 2, sec. D(11) (requirements may be waived when the prospective fiduciary is serving sufficiently as a VA fiduciary for other individuals). The field examiner recommended the appointment of C.I. as the Veteran's fiduciary. Later in May 2011, the RO's Veterans Service Center Manager appointed C.I. as the Veteran's legal custodian fiduciary and the Veteran was notified of the appointment by a letter also dated May 2011. The appointment of C.I. as fiduciary includes a commission of three percent and the Veteran was notified of the commission. The amount of this commission is not improper as a commission may be up to four percent of the VA monetary benefits paid on behalf of the beneficiary to the fiduciary during a year. See 38 U.S.C.A. § 5502(a)(2); 38 C.F.R. § 13.64(b). Generally, a VA appointed fiduciary is to be encouraged to serve without a commission or fee. See 38 C.F.R. § 13.64. Federal fiduciary commissions should be authorized only as a last resort to induce a qualified fiduciary to serve when that fiduciary or another qualified fiduciary will not serve without a commission. See M21-MR, Part XI, Subpart 2, sec. E(29)(b). Here, a commissioned federal fiduciary is necessary as there is no indication that there is another qualified fiduciary who will serve without a commission. This is specifically so in light of the Veteran's sister D.A. declining to be a fiduciary. The Board notes that, in a separate decision, the Board granted an earlier effective date for the award of service connection for the Veteran's paranoid schizophrenia. This may result in a retroactive lump-sum payment to the Veteran. Notably, after March 16, 2002, VA will not authorize payment of a commissions based upon retroactive, lump-sum, or other one-time benefit payments disbursed to a fiduciary. See Veterans Benefits Administration Fast Letter 12-10 (Mar. 16, 2012). In July 2011, the field examiner informed C.I. that a surety bond was necessary in the amount of $100,000.00 to protect the Veteran's estate. The record reflects that C.I. obtained a surety bond in the amount of $108,000.00 in September 2011. Thus, the surety bond requirement has been met. See 38 C.F.R. § 13.105. The RO has continued its oversight of C.I. in the fiduciary process. In March 2012 and March 2013, an accounting of the Veteran's funds was requested. See 38 C.F.R. § 13.100(a). Additionally, another field examination was conducted in October 2012. During the course of C.I.'s duties as a fiduciary, there has been no evidence or allegation of misuse of the Veteran's funds. Additionally, there has been no evidence or allegation of a grave impropriety such as misappropriation, embezzlement, or violation of Federal statutes. See 38 C.F.R. § 13.100(d) (referral to VA's Regional Counsel or U.S. Attorney in these circumstances). Although correspondence reflects some possible timeliness difficulties in one-time disbursements for the Veteran's vacations, and repair work and furniture for his house, it appears that his monthly expenses are being readily met by the fiduciary process. Accordingly, the appointment of C.I. as the Veteran's fiduciary was proper. In consideration of the evidence of record, the Board finds that: (1) a fiduciary is warranted to manage the Veteran's VA benefits; (2) the Veteran's sister D.A. has indicated that she does not wish to be appointed as the Veteran's fiduciary; and (3) the RO's certification and appointment of C.I. as the Veteran's paid federal fiduciary was made after a field examination; there has been appropriate investigation and supervision of the fiduciary; and there has been no indication of misuse of funds or other impropriety. In view of these findings, the Board concludes that the appointment of a fiduciary to manage the Veteran's VA benefits was proper and the appeal must be denied. 38 U.S.C.A. §§ 5502, 5506, 5507; 38 C.F.R. §§ 3.850, 13.2, 13.55, 13.64, 13.100, 13.105. ORDER The appointment of a fiduciary to manage the Veteran's VA benefits was proper; the appeal is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs