Citation Nr: 1321585	
Decision Date: 07/05/13    Archive Date: 07/12/13

DOCKET NO.  13-06 827	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Whether the Veteran is competent to handle disbursement of VA funds.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

Jennifer R. White, Counsel


INTRODUCTION

The Veteran served on active duty from December 1952 to December 1954.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

In June 2012, the Veteran testified at a Decision Review Officer hearing at the RO in Baltimore, Maryland.  A transcript of that proceeding is of record.

In May 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in Washington, D.C.  A transcript of that proceeding is of record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

It is not shown by clear and convincing medical evidence that the Veteran lacks the mental capacity to contract or manage his own affairs, including the disbursement of funds, without limitation.  Resolving all doubt in the Veteran's favor, he is competent to manage his own funds without limitation.


CONCLUSION OF LAW

The Veteran is competent for the purpose of receiving direct payment of his VA compensation benefits.  38 U.S.C.A. §§ 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.353 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  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).  The Board is taking action favorable to the Veteran by restoring competency status for VA benefits purposes.  Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered as this decision poses no risk of prejudice to the Veteran.

Competency of Payee

The Veteran contends that he is competent to manage his VA funds without limitation. 

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 (2012) (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). 

The Veteran was deemed incompetent by the RO based on a June 2010 Aid and Attendance examination by a VA examiner.  The examiner checked a box (without explanation) indicating that the Veteran did not have the ability to manage his own financial affairs.  

A December 2011 Aid and Attendance examination also indicates that the Veteran was not able to manage his financial affairs.  Again, there was no rationale for this statement.

The Veteran submitted a statement dated February 2013 from the Assistant Chief of Neurology at the Washington VA Medical Center.  The physician indicates that he has followed the Veteran's condition for years.  The Veteran is in a VA nursing home for falls due to spinal stenosis.  The physician indicates that the finding of incompetence is surprising and based on a VA examination which is filled with incorrect information.  The physician indicates that the Veteran has neither Parkinson's disease nor multi-infarct dementia.

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 Board finds that it is not shown by clear and convincing medical evidence that the Veteran lacks the mental capacity to contract or manage his own affairs, including the disbursement of funds, without limitation.  In this regard, there is contradictory evidence of record regarding the Veteran's competency to handle disbursement of VA funds.

The Board notes that the RO made the finding of incompetence on the basis of Aid and Attendance examinations.  However, the examiners provided no rationale for their opinions.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (holding that the failure of the physician to provide a basis for an opinion goes to the weight or credibility of the evidence).

Additionally, the Board finds that the opinion of the Veteran's treating neurologist to be far more probative than the unsubstantiated "check the box" type responses provided by the VA examiners.  In this regard, the Board observes its duty to assess the credibility and weight to be given to the evidence.  See Wood v. Derwinski, 1 Vet. App. 190 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992).  

As noted above, 38 C.F.R. § 3.353 specifically notes that determinations relative to incompetency should be based upon all evidence of record.  38 C.F.R. § 3.353(c). Moreover, a presumption of competency exists, particularly where, as here, reasonable doubt exists regarding the Veteran's mental capacity to contract or manage his own affairs, including the disbursement of funds, without limitation.  38 C.F.R. § 3.353(d).  In light of the conflicting evidence of record regarding the Veteran's competency to manage his own affairs, including the disbursement of funds, the Board finds that it is not shown by clear and convincing medical evidence that the Veteran lacks the mental capacity to contract or manage his own affairs, including the disbursement of funds, without limitation.  Therefore, resolving all doubt in the Veteran's favor, the Board finds that the Veteran is competent to manage his own financial affairs, including the disbursement of funds, without limitation.  38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56.


ORDER

Restoration of competency status for VA benefits purposes is granted.




____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs