Citation Nr: 1322083 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 00-16 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether the Veteran is competent for purposes of receiving Department of Veterans Affairs benefits, to include managing her own funds without limitation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1999 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC, which found that the Veteran was not competent for purposes of VA benefits. The claims file is currently under the jurisdiction of the VA RO in Roanoke, Virginia. In July 2001, the Board granted the Veteran's motion for a new Board hearing to be held in Washington, DC. In October 2001, the appellant failed to report for a scheduled Board hearing in Washington, DC. Therefore, no further development with regard to a hearing is necessary. The Veteran's original claims file was lost after she filed a premature appeal to the United States Court of Appeals for Veterans Claims. An April 2011 Board memorandum indicates that after several extensive searches, the VA ROs in Roanoke and Washington as well as the Board were unable to locate the original claims file and that the claims file was rebuilt by the VA RO in Roanoke and then forwarded to the Board. In February 2012, the Board remanded the matter for additional development. FINDING OF FACT It is clearly and convincingly shown by medical evidence that the Veteran is not competent to manage her own funds without limitation. CONCLUSION OF LAW The Veteran is not mentally competent for VA benefits purposes. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.353 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In general, the VCAA sets forth VA's duties to notify and assist claimants regarding their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). 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 her 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. See Holliday v. Principi, 14 Vet. App. 280 (2000) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). 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. Legal Criteria, Factual Background and Analysis For VA purposes, a mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or to manage her affairs, including the disbursement of funds without limitation. 38 C.F.R. § 3.353(a). Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, the rating agency 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 as 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. Id. There is a presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage her 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. The Board notes that all of the evidence in the Veteran's claims file and in Virtual VA with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to this matter. The Board notes that the Veteran's original claims file was lost and another claims file was rebuilt by the RO. Pursuant to the February 2012 Board remand, the Appeals Management Center (AMC), in a March 2012 letter, asked the Veteran to provide authorizations to obtain psychiatric treatment records from Crownsville Hospital Center in Crownsville, Maryland, and the Central Detention Facility in Washington, DC. The Veteran has not responded to that request. Furthermore, VA examinations requested in November 2012 and January 2013 were cancelled due to the Veteran's failure to respond. There has been no request to reschedule an examination. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street). Evidence expected from the psychiatric treatment records and from the VA competency examination, which may have been material to the outcome of this case, is not of record and therefore not considered in this instance. Based on the evidence of record, the Board finds that that the Veteran is not competent to manage disbursement of funds. The Board acknowledges the Veteran's belief regarding competency. However, longitudinal review of the record establishes, clearly and convincingly, that the Veteran is not competent for the purpose of managing the disbursement of her VA benefits without limitation. The Veteran is receiving a 100 percent disability rating for a psychiatric disorder (depressive reaction), effective since December 1, 2000. The record reflects that she was deemed incompetent from December 1, 2008. VA admission reports dated intermittently from September 2006 to December 2006 show admitting diagnoses of schizophrenia, suicidal ideation, homicidal ideation, and acute psychosis. VA admission reports dated intermittently from May 2007 to September 2007 show admitting diagnoses of suicidal ideation, melancholic depression, schizoaffective disorder, and schizophrenia. VA admission reports dated intermittently from September 2008 to December 2009 show admitting diagnoses of schizoaffective disorder, suicidal ideation, mood disorder and suicidal, and depression with suicidal ideation. VA admission reports dated intermittently from April 2010 to September 2011 show admitting diagnoses of suicidal ideation, paranoia, psychosis, and depression. In a March 2012 VA psychiatry attending note, it was noted that the Veteran was admitted on transfer from another VA facility. She was well known to the treatment team and it was noted that she had a history of frequent admissions to community and VA hospitals for symptoms of schizoaffective disorder and personality disorder, cluster B traits. She was initially admitted for treatment of psychosis. In September 2012, a VA Medical Center (VAMC) clinical nurse noted that the Veteran arrived in mental health in an agitated state wearing purple scrubs and an emergency room bracelet on her wrist. She asserted she needed to see a psychiatrist and a social worker about something that happened at her assisted living facility. She left after being redirected to the emergency room. In a September 2012 VAMC progress note, it was noted that the Veteran stated "Creatures coming out of my vagina." She stated that she first noticed this the previous day and had passed snake from her vagina before. She stated that her pee was poisoned and she peed outside on purpose so that if she passed something the policeman would see it. She stated that she might jump off the bridge to commit suicide or go to "UMMS to cardiac intensive care bed or ED not sure which." The assessments were, reported foreign beings coming from vagina and suicidal ideations. A pelvic examination was completely normal without signs of infection, parasite infestation or injury. Regarding suicidal ideations, her plan was unspecified other than to jump off an unspecified bridge. It was further noted that after she requested diapers and antifungal cream, she refused again to go to the emergency department. She demonstrated agitation (posturally and verbally) towards her social worker stating emphatically and with raised voice that she wished for the social worker to stop bothering her and help her get her money from an individual (who she named). Minutes later she was seated on the floor (of the outpatient hallway) "Taking a break." On objective evaluation by a VA psychiatrist in September 2012, it was noted that the Veteran was poorly groomed with altered auditory feedback with no shoes (she did not know where her shoes were). Alternatively she was mute, angry, hostile and laughing inappropriately. She was delusional. She had poor insight; she did not realize she was psychotic and manic. Her judgment was very poor. She wanted to leave the hospital without any shoes and she had no idea where she would go. The assessment was schizoaffective, manic with psychosis, very poor insight and judgment and in need of psychiatric hospitalization. The evidence as delineated above, shows the Veteran continues to suffer from psychiatric disabilities for which she receives treatment, but continues to show poor judgment and insight. The record reflects that she cycles through mental health phases often and that her psychiatric disability is severe enough to require her to be frequently hospitalized for treatment. Here, the competent and probative evidence overwhelmingly confirms that she has poor judgment and insight. The record is absent any evidence to show that under her current state of mental health, she is capable of managing her finances. As noted earlier, evidence expected from private facilities, where she may have received psychiatric treatment and VA competency examination, may have been material to affect a different outcome in this matter but the Veteran did not cooperate with VA in securing such evidence. In light of the above, the Board finds that the Veteran is not competent for the purpose of receiving direct payment of her VA benefits. ORDER The appeal seeking to establish that the Veteran is competent for VA benefits purposes is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs