Citation Nr: 1320434 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-03 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether the Veteran is competent for the purpose of receipt of direct payment of Department of Veterans Affairs disability compensation benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from March 1977 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified at a hearing before the undersigned Veterans Law Judge sitting in Washington, D.C., in June 2009. In September 2010, the Board remanded the Veteran's claim for additional development. The Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board does find substantial compliance with its remand instructions, as Social Security Administration records and a VA examination discussed in further detail below, were obtained. Therefore, the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). The Board notes that new lay evidence and duplicative clinical evidence has been associated with the claims file since issuance of the September 2011 supplemental statement of the case. Nevertheless, in September 2011, the Veteran's legal guardian submitted a waiver of the Veteran's right to have his case remanded back to the Agency of Original Jurisdiction (AOJ) for consideration of the new evidence. 38 C.F.R. § 20.1304 (c) (2012). FINDING OF FACT The preponderance of the competent evidence of record, medical and lay, shows that the Veteran lacks the mental capacity to manage his own affairs. CONCLUSION OF LAW The Veteran is not competent to handle the disbursement of VA funds. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.353(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In Sims v. Nicholson, 19 Vet. App. 453, 456 (2006), the United States Court of Appeals for Veterans Claims (Court) explicitly held that these notice and assistance provisions do not apply to competency determinations. This is so because 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. Id. Consequently, the Board is not required to address VA's efforts to comply with those provisions with respect to the issue currently on appeal. 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. § 3.535(a). There is a presumption in favor of competency. 38 C.F.R. § 3.353(d). Where reasonable doubt arises regarding a Veteran'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. 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 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). The Board has reviewed the evidence of record and concludes that the Veteran is not competent to handle the disbursement of his VA benefits. In so finding, the Board acknowledges the presumption in favor of competency. 38 C.F.R. § 3.353(d). Here, however, despite the Veteran's desire to be declared competent, the evidence of record supports a finding of incompetency. Here, the most probative medical evidence of record tends to weigh in favor of a finding that the Veteran is incompetent for VA purposes. The medical evidence shows that the Veteran underwent psychological testing at VA in May 2008 to evaluate his ability to handle his own affairs. The VA psychologist found, based on the testing results, that the Veteran could not handle his own affairs. The psychologist qualified, however, that the Veteran's more recent behavior indicated that he had made significant improvement. On follow-up in June 2008, the VA psychologist recommended that the Veteran's guardian provide him his entire monthly income for six months on a trial basis. It was noted that the Veteran's intellectual functioning was adequate to handle his personal affairs, including finances. However, the Board points out that the VA psychologist did not recommend that the guardianship be terminated. Nor did the VA psychologist determine that the Veteran was competent to manage his own affairs. Shortly thereafter, in July 2008, the Veteran underwent a VA examination. Based on a comprehensive review of the pertinent history, including the June 2008 VA psychologist's conclusions, the VA examiner opined that the Veteran "is not remotely competent to handle VA funds." On follow-up at VA in November 2008, the Veteran's treating VA psychologist commented that a "recent bankruptcy proved that he cannot handle his own money." The Veteran reported that he was going to attend a financial literacy class, but the psychologist explained that the Veteran needed to "show for about a year that he can handle money." In December 2008, a VA psychiatrist likewise found that the Veteran had "continued need of guardi[an]ship." In support of his claim of competency, the Veteran testified at his June 2009 Board hearing that he takes care of his own car, grocery shopping, and household chores. The Veteran's then-guardian, who is an attorney, indicated at the June 2009 Board hearing that the Veteran should be granted a trial period for handling his own affairs. She felt, in her capacity as his guardian, that he had significantly improved and was "very self-sufficient." Significantly, at the time of her testimony, the then-guardian had only been the Veteran's guardian for a few months. The Board also observes that by October 2010, the Veteran had a different guardian than the individual that testified before the Board on his behalf in June 2009. In December 2010, the Veteran had a further VA examination to determine his competency to handle his VA funds. Following a thorough review of the claims file and electronic medical records, the VA examiner found that there was no clear answer. He noted that prior evidence showed the Veteran to be impulsive and to have poor judgment that would interfere with his ability to manage funds. The examiner noted that the Veteran had recently gambled and lost four thousand dollars. However, the examiner also found that some recent testimony of record - presumably the testimony of the Veteran's then-guardian during the Board hearing - weighed in favor of competency. Thus, affording the Veteran the benefit of the doubt, the examiner recommended that the Veteran be given the opportunity to have a "closely supervised direct distribution of his VA funds for a trial period of time." Also in December 2010, the Veteran's court-appointed guardian was appointed as fiduciary for the Veteran's VA benefits. The record shows that in May 2011, the Veteran was hospitalized at a VA medical center due to his schizophrenia. In April 2012, the Veteran contacted VA complaining that his current fiduciary would not give him money to fix his truck and therefore he wanted a new fiduciary. VA contacted the Veteran's court-appointed guardian and VA fiduciary to inquire about the status of a requested car repair. Parenthetically, the Board notes that the Veteran testified before the Board in support of competency that he takes care of his car responsibilities. In response to VA's inquiry, the Veteran's guardian indicated that the Veteran had a history of expensive repair requests for his vehicle and that he believed he was getting "taken for money for the 'repairs'." The conservator noted that the Veteran had submitted multiple requests in the same week for repair of the same item (a timing belt). He indicated that he would not grant the request unless the Veteran submitted quotes from three repair shops. In May 2012, a VA field examiner spoke with the Veteran, who reported to the examiner that he was handling most of his funds on his own. The Veteran reported that he was wanting to get free from guardianship. He indicated that he receives $3,100 from his court-appointed guardian and with the money, he pays all of his own bills. In response to his report, the field examiner contacted the guardian and requested an opinion on the Veteran's ability to handle finances. The guardian noted that, after the Veteran sent about 800 emails and faxes to the State court, he was granted a three-month trial period of supervised pay. The guardian was ordered to give the Veteran a check for a certain amount but to also continue paying more important bills, such as car payments. The guardian indicated that the Veteran "has screwed up so many times during the trial period" and that there were "a bunch of guys trying to get paid back for [the Veteran's] wheeling and dealing" in the amount of $16,000. He further noted that the Veteran has a gambling problem and that VA medical records show that, in collecting antiques, coins, and watches, the Veteran "buys high, and then when he is out of money, he sells low in order to fuel his gambling or maybe just to eat." He related that the Veteran had also received approximately $129,000 in back pay from the Social Security Administration and that it had been "burning a hole in his pocket since." In conclusion, the guardian opined that the Veteran "will never be able to handle his money." In May 2012, the VA field examiner informed the Veteran that, since he was in an ongoing supervised direct pay program with the court, VA would wait to make a decision following a decision by the court and judge. The examiner notified the Veteran to contact VA if there was any different action by the court in regards to guardianship. Thereafter, in June 2012, the Veteran contacted VA asking for essentially a lump sum of money from aid and attendance benefits for the stated purpose of paying his wife's medical bills. The record shows that the Veteran's wife suffers from Parkinson's disease, and at times, suffers from confusion related to the same. In response to a congressional inquiry on the matter, VA reported that it confirmed that the Veteran's fiduciary had been sending to the Veteran's spouse a bi-monthly allowance. However, the Veteran and his wife had separated, and the wife did not provide another address for VA to send money. Thereafter, in June 2012, the Veteran and his spouse reconciled and the Veteran reported that she makes him happy. In July 2012, the Veteran's brother was appointed as the new fiduciary for the Veteran's VA benefits by a VA field examiner. Such action affirms that the VA field examiner did not find the Veteran competent for VA purposes. In November 2012, the Veteran informed VA that he had requested additional money from his brother, but that his brother would not release additional money with an authorization letter from VA. The Veteran requested an extra 200 dollars to spend on holidays and special occasions. He indicated that he does not need the money on a recurring basis. The Veteran also requested the same month to have his wife's aid and attendance benefits terminated, as they had again separated and that a divorce might occur. In December 2012, VA sent correspondence to the Veteran indicating that it was approving his request for the release of additional money by his fiduciary on an occasional basis. The Board has reviewed the evidence of record and finds that there is clear and convincing evidence that the Veteran's is unable to manage his own affairs, including disbursement of funds without limitation, and that the presumption of competency is overcome. The opinions of the July 2008 VA examiner and, in particular, the Veteran's guardian in May 2012, clearly show, are convincing, and leave no doubt that the Veteran is incompetent to manage his own affairs. Specifically, the record shows that the Veteran is 100 percent service connected for schizophrenia and exhibits impulsive and compulsive behavior, poor judgment, and has a gambling problem. Indeed, he has had a financial conservator or guardian since at least as early as 1985, and importantly, no VA examiner during the pendency of the appeal has deemed the Veteran to be competent for VA purposes or otherwise indicated that guardianship should be terminated. At most, VA examiners and providers have suggested that the Veteran be afforded a trial period to prove his competency. However, the record shows that the Veteran was recently granted by a state court a 3-month trial period of supervised handling of his own funds, during which time he "screwed up" and incurred debt. As a result, in May 2012, the Veteran's guardian from December 2010 to July 2012, opined that the Veteran will never be able to handle money. While the guardian is an attorney and not a medical professional, his opinion is deemed probative and persuasive as it was based on VA records and an overall familiarity with the Veteran's behavior over a period of approximately 18 months. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Moreover, it was supported by specific examples of the Veteran's ongoing behavior demonstrating his incompetence, as well as medical evidence showing that, while the Veteran may have been noted to have periods of improvement, he subsequently reverted back to impulsive behavior, gambling, and accumulating debt when given the opportunity to do so financially. Conversely, the only evidence in support of competency, other than the Veteran's own contentions, is the June 2009 testimony of the Veteran's then-guardian. Significantly, however, that opinion was offered after only a few months of familiarity with the Veteran, and there is no indication that the guardian reviewed the Veteran's VA medical records or was otherwise familiar with his medical history. In this regard, the guardian did not discuss the Veteran's history of gambling or accumulating debt. Therefore, as the June 2009 opinion of the Veteran's then-guardian does not reflect adequate consideration and analysis of the relevant medical evidence of record, to include evidence related to the severity of the Veteran's mental condition, the Board finds the basis of the provided opinion to be, at best, incomplete, which significantly limits the probative value accorded this opinion. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). Moreover, following that June 2009 opinion, the Veteran continued to exhibit behavior showing an inability to handle his finances in his own best interest as noted by his gambling losses in November 2010, the accumulation of debt noted in May 2012, and the Veteran's handling of his Social Security Administration back pay as described by his guardian in May 2012. The Board has considered the contentions of the Veteran and his representative with regard to restoration of a determination of competency. However, the Board finds that their statements are outweighed by the clear and convincing opinions of the Veteran's guardian in May 2012, and VA providers and examiners in July 2008, November 2008, December 2008, that he is not competent to manage his affairs. The Board also has considered the assertion of the Veteran's representative that the December 2010 VA examiner's opinion is speculative and therefore inadequate. However, the Board finds that the VA examiner adequately explained the bases for the opinion offered, noting that there was evidence for and against findings of competency, and ultimately declined to find the Veteran competent but found that the Veteran should be afforded the opportunity to prove his competency. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Significantly, however, when given the opportunity to do so, the examiner did not find the Veteran to be competent, nor did the examiner recommend termination of guardianship. Further, to the extent that the examiner relied on the June 2009 testimony in support of competency, the Board has found that testimony to lack probative value. Moreover, the Board finds that the Veteran's assertions are neither probative nor persuasive, as the Veteran has been less than truthful, and perhaps even deceitful, to VA employees and guardians in seeking to prove that he is competent. For instance, he reported to VA in April 2012 that he was paying all of his own bills. However, that assertion was contradicted by his guardian's May 2012 communication in which the guardian reported that he was still directly paying the important bills, and that the Veteran had screwed up many times and incurred debt through "wheeling and dealing" while in control of his money. Moreover, as described by the Veteran's guardian of nearly 18 months, the Veteran has submitted questionable requests for money and the guardian felt that he was "being taken for money." Given the questionable credibility of the Veteran, and that he stands to gain the most by being deemed competent, the Board finds his assertions neither probative nor persuasive. In light of the foregoing, the Board finds that the preponderance of the evidence clearly shows that the Veteran is not competent for the purpose of handling the disbursement of his VA benefits. Therefore, the Veteran's appeal must be denied. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs