Citation Nr: 1314117 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 08-05 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether the Veteran is competent for Department of Veterans Affairs purposes to handle disbursement of funds. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from March 1974 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The record reflects that the Veteran was scheduled for a Travel Board hearing before a Veterans Law Judge in August 2010, but that he failed to report for the hearing. In August 2011, the Board remanded the matter for additional development, to specifically include a VA examination and opinion. As appropriate actions were taken to afford the Veteran a VA examination and obtain an opinion in May 2012, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT It is clearly and convincingly 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 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. 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). The Veteran is currently in receipt of VA compensation benefits due to schizophrenia, evaluated as 100 percent disabling. In this case, the RO proposed a finding of incompetency in a February 2006 rating decision based upon correspondence from a VA physician dated in September 2005. In a February 2006 letter, the Veteran was informed of the competency requirements and the evidence he could submit to establish his competency. In correspondence received in May 2006, the Veteran alleged that he was competent for the purpose of receiving direct payment of his VA benefits and emphasized that he has been managing his own Social Security benefits since entitlement. Moreover, he requested that prior to any adverse action, he should be afforded a personal hearing and an independent medical evaluation, if necessary. Pursuant to the Veteran's request, he was scheduled for a hearing at the RO. However, following one postponement of the hearing at the Veteran's request, the RO was informed by the Veteran's service representative that the Veteran was not going to appear for a personal hearing. Furthermore, another personal hearing was not requested. Accordingly, 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 treatment records and field studies, private medical opinions, and a report of a VA examination. 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 show that the Veteran began having psychiatric problems in service, the result of which he was hospitalized and subsequently medically separated from service in May 1975, with a diagnosis of schizophrenia. Soon after separation from service, the Veteran was granted service connection for schizophrenia, rated as 100 percent disabling, effective December 8, 1976. Post service VA records dated through June 1997 show numerous hospitalizations, VA examinations, and field examinations related to the Veteran's schizophrenia, during which he was routinely found to be competent. Significantly, however, as early as August 1990, the Veteran reported that "all of his financial cares are taken care of by someone else," and that he was given daily spending money. In December 1991, the Veteran executed a power of attorney designating his sisters as his attorneys-in-fact for various purposes, including financial matters. Furthermore, the record shows that in July 1995, a VA physician submitted a statement indicating that for the past two years, the Veteran's family members had been managing his financial affairs. However, the physician noted that there were conflicts and that the Veteran requested that his finances be managed by someone other than a family member. The physician further noted that he was very familiar with the Veteran based on prior admissions for paranoid schizophrenia, and that the Veteran was unable to manage his finances due to his psychosis and deteriorating judgment. Thereafter, in an August 1995 statement, a provider from the Veteran's VA treatment team opined that the Veteran's sister, who had been managing the Veteran's funds, would not be an adequate conservator, as she had been obstructive to the Veteran's medical/psychiatric recommendations regarding placement and treatment to the extent of negatively impacting his condition. Nevertheless, in August 1995 and October 1995 statements, a private nurse and psychiatrist opined that the Veteran is mentally competent to handle his VA funds. The opinions were based on evidence that the Veteran had worked for the last two years on a regular basis with the Triangle program and made an honest effort to challenge himself. It was further noted that the Veteran had a very supportive family. Significantly, there is no indication that the Veteran underwent any sort of psychiatric evaluation in conjunction with those opinions, or that either private provider was familiar with the Veteran's mental health history. Indeed, there is no discussion of the prior evidence of record that the Veteran had not been managing his financial affairs since 1990, that the Veteran himself requested that someone other than his family member manage his financial affairs, and that the Veteran's treating VA provider found the Veteran to be not competent to manage his financial affairs. Furthermore, the private providers' conclusion that the Veteran's family is supportive is contradicted by other evidence of record, including VA treatment records and statements offered by the Veteran's treating VA providers familiar with the Veteran's extensive medical history, indicating that the Veteran's family at times has a negative impact on his condition. Thereafter, in the September 2005 statement that was the basis for the current determination of incompetency, a VA physician and another VA care provider unequivocally opined that the Veteran is unable to handle his financial affairs and care for his personal property. The opinion was based on the Veteran's behavior since approximately 1990, with reference to specific examples of behavior that demonstrated his inability to handle his financial affairs. The VA providers noted that the Veteran is extremely subject to victimization and they strongly felt that a VA conservator should be assigned to protect the Veteran's financial affairs and personal property. In support of the Veteran's claim, an October 2006 statement from a private psychiatrist was submitted opining that the Veteran was competent to manage his finances. However, the private psychiatrist provided no rationale or objective examination findings to support that conclusion. Nor did the psychiatrist indicate any familiarity with the Veteran's mental health history, or even that the Veteran had been examined. Also in support of the Veteran's competency, an October 2007 letter was received from the Veteran's employer who indicated that the Veteran did excellent work and was a great asset to the department. Significantly, however, that letter did not address the Veteran's ability to manage finances. In May 2012, the Veteran was afforded a VA examination for the purposes of evaluating his competency. Prior to the examination, he contacted a member of the Veteran's VA treatment team to gain some background information. During the examination, the examiner met with the Veteran alone first, and then with the Veteran and his sister. Socially, it was noted that the Veteran had two living sisters and an elderly mother. He lived in a department of mental health contract home. Occupationally, the Veteran attended a therapeutic drop-in center five days a week. It was noted that the Veteran had not had competitive employment in decades, though he had worked for 16 years with Project Triangle, which was essentially sheltered, non-competitive employment similar to a compensated work therapy program. Regarding activities of daily living, the examiner noted that clinicians had to transport the Veteran from his residence to his medical appointments, and that the staff at the house where he lives administers his medications. The examiner indicated that the Veteran was without question totally impaired for occupational and social purposes. During the interview, the Veteran was initially playing music on his headphones until the examiner asked him to stop. His behavior was notable for frequent jerky movements and occasional odd posturing. His mood was anxious, agitated, and labile, and his affect was full and inappropriate. Speech was fluent and rapid with grammar fully intact. Comprehension was intact most of the time, but the Veteran was so tangential that it was sometimes difficult to determine. Thought processes were badly fragmented with frequent flight of ideas and loose associations. There was also some thought derailment, but no blocking. The examiner observed considerable tangentiality and circumstantiality. He found the Veteran's insight to be limited and his judgment questionable. Regarding temperament, the Veteran was noted to be easily excited, but not aggressive. He was also irritable, at which point he begins to sound paranoid. The examiner noted that because of the Veteran's level of disorganization, it was difficult to determine if he had recent auditory or visual hallucinations. However, he clearly has ideas of reference and pervasive paranoia, which may be nearly continuous. The examiner noted the Veteran's report that he had a conservator since 2006, but that his sister "keeps bleeding me for more money." The Veteran did not know how much money, if any, he has to pay the conservator. He reported that he has three bank accounts, and receives an allowance from his VA funds of approximately 400 dollars to 500 dollars per month. However, he was not sure what percentage of his total allotment that amount represents. The Veteran reported that his conservator is also controlling his Social Security Administration disability funds, but was unaware of how that came to be and believed it may have been unauthorized by the Veteran. However, the examiner noted that a December 2006 VA treatment note authored by the Veteran's VA group therapist notes that the "Veteran feels comfortable with his conservator and has made him his Social Security payee." The examiner also met with the Veteran's sister, who reported that in the past, another caregiver had been stealing money from the Veteran and that the Veteran has been suspicious of financial arrangements ever since. She reported that the Veteran does not really know where his VA or SSDI funds go. She indicated that she does the Veteran's taxes, and that she feels uncomfortable with the Veteran handling a lot of cash because the Veteran has reported that others in the home where he lives sometimes steal money. Following a thorough review of the claims file and VA treatment notes, a discussion with a member of the Veteran's VA treatment team, a thorough clinical evaluation of the Veteran, and an interview with the Veteran and his sister, the VA examiner concluded that the Veteran should continue to be considered not competent for VA financial purposes. The examiner noted that during the examination, the Veteran clearly had problems with paranoid thinking, ideas of reference, a tendency to be distracted by thoughts about irrelevant subjects, and poor reality testing. The examiner further noted that each of those problems was quite pronounced, and that those same problems are repeatedly documented in the Veteran's treatment notes. The examiner assigned a GAF score of 35, noting that he rarely assigns a GAF score of below 40 to anyone who is not on inpatient status. However, in the Veteran's case, the examiner found the GAF score of 35 "all too appropriate." He concluded that the Veteran's paranoid thinking has expanded to the point that he cannot trust anyone with his finances. Here, the presumption of competency is rebutted by the most probative evidence, namely the September 2005 and May 2012 VA opinions. That 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 the Veteran is incapable of managing his finances. While the Veteran submitted a private October 2006 opinion that the Veteran is competent to handle finances, that opinion was not supported by any rationale or objective findings, nor is there any indication that it was based on an evaluation of the Veteran, a familiarity with his medical history, or a review of any records. What is more, the opinion is inherently contradictory. In this regard, the psychiatrist states that the Veteran is competent to manage his finances, and further adds that the Veteran's "sister is available to help him in this regard if necessary." Indeed, if the Veteran is completely competent to handle his own finances, as asserted, it would be unnecessary for the Veteran's sister to assist him. The opinion is accorded no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). 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 those 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 psychiatric impairment, including psychosis and impaired judgment. Although some records, such as the October 2007 letter from his employer, indicate he performs well in his employment for people with disabilities, the evidence as a whole reflects the Veteran's psychiatric disorder renders him incompetent to manage his finances. Indeed, the evidence suggests that the Veteran has not been managing his own finances since 1990, and the Veteran's own VA treating mental health providers have repeatedly expressed concern over the Veteran's inability to manage his finances, including as early as July 1995. Most significantly, after reviewing the entire record and considering the effects of the Veteran's disabilities, the May 2012 VA examiner concluded that the Veteran's psychiatric disability rendered him totally impaired and not competent to manage his finances. Furthermore, the Board notes that the Veteran generally does not contend he is capable of handling his finances without supervision. In his May 2006 and July 2006 written statements in which he asserts his competency to handle finances, the Veteran reports that his sister assists him with financial issues when necessary. Those assertions are consistent with prior evidence of record showing that the Veteran has generally not managed his finances without the assistance of his family since at least as early as 1990. Furthermore, to the extent that the Veteran reported in his 2006 written statements that he handles his own Social Security checks, the record shows that just months later, the Veteran designated his conservator to manage his SSA benefits in addition to his VA benefits. 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 schizophrenia, 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. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER The Veteran is not competent to manage disbursement of funds, and the appeal is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs