Citation Nr: 1325018 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-04 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the Veteran is competent for VA compensation purposes. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active military service in the United States Army from May 1970 to January 1972, and in the United States Navy from August 1975 to June 1976. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, from a March 2008 rating decision of the Cleveland, Ohio, Regional Office (RO), of the Department of Veterans Affairs (VA), which determined that the Veteran remained incompetent for purposes of VA benefits. FINDINGS OF FACT The Veteran lacks the mental capacity to manage his affairs, including the disbursement of VA funds without limitation. CONCLUSION OF LAW The criteria for the finding of the Veteran competent for the managing of disbursement of his VA funds have not been met. 38 U.S.C.A. § 501(a) (West 2002); 38 C.F.R. § 3.353 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. § 5103A (West 2002). The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. In Sims v. Nicholson, 19 Vet. App. 453, 456 (2006), the United States Court of Appeals for Veterans Claims, hereinafter the Court, held that VA's duties to notify and assist under the VCAA were not applicable to competency determinations. As such, no further discussion regarding these duties is necessary. A mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or to manage his/her affairs, including the disbursement of funds without limitation. 38 U.S.C.A. § 3.353(a) (2012). 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. Determination as to incompetency should be based on 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) (2012). Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or manage his or 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) (2012). In December 1976, approximately six months after the Veteran was discharged from service, he was admitted to a VA hospital for nearly two months. After receiving treatment, he was discharged and given a diagnosis of paranoid schizophrenia. In August 1977, the RO granted service connection for paranoid schizophrenia. A 100 percent disability rating was assigned, effective December 27, 1976-the date of his hospitalization. In May 1, 1980, the rating was reduced to 70 percent. The Veteran's disability evaluation was further reduced to 50 percent in August 1982. In November 1985, the Veteran underwent a VA Psychiatric Examination. He admitted that his mother helped him with his money and bills. The doctor concluded that the Veteran needed to continue his psychiatric treatment and medications, but was competent for his own pay purposes. In August 1986, another VA examination was performed. Upon completion of the examination, the doctor concluded that the Veteran was "probably" competent to handle routine affairs, but this could change very rapidly. In September 1986, the RO increased the rating for schizophrenia to 100 percent, effective July 18, 1986. The Veteran underwent another VA Psychiatric Examination in August 1988. Prior to the examination, the Veteran admitted that he had difficulty communicating with others, and he was unable to make friends. He also admitted that he believed that he lost his motor skills daily and that he heard voices. The examiner noted that the Veteran was somewhat unkempt and not clean. He told the examiner that he heard voices but he was able, slowly, to answer the questions posed to him. The examiner concluded that the Veteran was suffering from severe paranoia along with depression. His attention span was found to be limited and his comprehension was impaired. His judgment was fair because he understood that he had a psychiatric disorder and that treatment was necessary. Finally, the examiner wrote: [H]e seems to be somewhat incompetent to handle his routine affairs but he repeatedly stated that he doesn't want his VA check in anybody else's name because he wants to have his own check so his mother can help him. . . . He stated that even a local bank would refuse to give him a checking account and he needs every bit of help by managing his own affairs including help from his mother. Two years later, another VA examination was accomplished. After completing the examination, the doctor concluded that the Veteran needed to undergo more aggressive psychiatric treatment and follow up. The doctor further opined that the Veteran's medications needed to be adjusted because they were not under control. It was also written that the Veteran could no longer handle any type of job due to his intense nervousness, agitation, and paranoia. The examiner did not make a determination as to whether the Veteran was competent. Another examiner, in January 1993, also found that the Veteran was capable of managing his own finances. In August 2002, the RO received a letter from a VA clinical social worker indicating that the Veteran was no longer capable of managing his own money. The letter stated that the Veteran's mother and stepfather were getting older and they no longer felt that they were capable of offering assistance to the Veteran. The social worker noted that the Veteran's stepfather claimed that others were taking advantage of the Veteran. The Veteran was seen numerous times at his local VA medical facility in from July to September 2002. These records show that the Veteran admitted he was having difficulty managing money. It was further noted that he was having difficulty keeping his house/room clean, that he was not complying with his medication intake, was not keeping his appointments for treatment, and was experiencing hallucinations and voices. It was further reported that his concentration was reduced, and his decision-making was impaired. One social worker, in August 2002, indicated that the Veteran needed to be seen at least once every two weeks vice once a month. The Veteran's Global Assessment of Functioning (GAF) score was 38 or 39. That same month, the Veteran not only said that he was having difficulty managing his money but he was unsure how he would pay his bills - such as paying for a cleaning lady who came twice a month. It was also reported that when the Veteran ran out of his psychotropic medications, he was unsure as to how to order new medications or seek a new prescription. In September 2002, the RO proposed to find that the Veteran was incompetent for the managing of his VA compensation benefits. The proposal was effectuated in a rating action issued in November 2002. In March 2007, the Veteran asked that he be found competent to handle his VA finances. The Veteran said that he could take care of himself. In conjunction with his claim for benefits. VA treatment records show that in July 2006, the Veteran was noted to need much oversight and assistance with management of his room and belongings and constant oversight for medication regime. When attempts were made to engage him in an activity to improve and take responsibility for individual activities of daily living, he would complain of a "fever" or "the flu," which appeared to be more malingering. Another report from April 2007 noted that the Veteran was found to have unneeded over-the-counter medications in his room, but that his cognition was intact and memory fair. He was suffering from delusions of being a famous singer or rock music composer. He lacked "insight into his own care" and needed supervision related to medications, appointments, and personal care. Insight was listed as poor to fair, and judgment was adjudged to be fair. In May 2007, the Veteran's case manager or social worker specifically noted that the Veteran was unable to manage his money or himself, and that it was the opinion of the case manager that the Veteran "cannot manage without the guardian." However, a report from July 2007 shows that the Veteran was compliant with his medications, that he was goal oriented, and was able to remain on topic with his thoughts and conversations. His insight and judgment was labeled as "fair." See also Medical Note, November 16, 2007. These notes show that efforts were being made to persuade the Veteran to move to a "semi-independent living" apartment. A review of the medical records from November 2007 to March 2008 would suggest that the Veteran was adjusting to living on his own and was not decompensating. The Veteran's medical treatment records from May 2007 to January 2010 initially suggest that the Veteran's judgment and insight were "fair" or better, the records further show overall evaluations of poor insight and judgment. It was reported that the Veteran did well in a supervised residential setting but even in such a setting, he had occasional difficulty in keeping himself neat, groomed, or bathed. Additionally, the Veteran continued to experience auditory hallucinations and occasional paranoia. In April 2008, the Veteran reported to a VA social worker than he had no food in his apartment. When the social worker arrived, the Veteran reported that he was too nervous to go shopping and provided a list for the social worker. The social worker reported that the list was appropriate for the Veteran's diabetic diet and that the apartment was clean. During 2008 and 2009 the Veteran was noted at times to be unkempt and dirty. In October 2008, it was reported that he had no idea of the value of money, or the difference between shopping for needs versus shopping for wants. In July 2009 the Veteran was reportedly still living in his apartment. The examiner reported that it was cluttered with dirty dishes. The refrigerator was found to have outdated, spoiled food. The Veteran himself was unkempt, unshaven, and disheveled. He was also agitated and uncooperative. Paranoia and auditory hallucinations were complained thereof, and it was insinuated that the Veteran was not being compliant with his medications. In January 2010, the Veteran was noted to be living in a group home. The Veteran has averred that he takes good care of himself, can handle money, and has good judgment, and was saving money. See VA Form 9, Appeal to Board of Veterans' Appeals, undated. The matter of competency involves specific inquiry into whether the Veteran lacks the mental capacity to manage is own affairs, including the disbursement of VA funds without limitation. As noted previously, there is a presumption in favor of competency when there is reasonable doubt as to the Veteran's mental capacity. See 38 C.F.R. §3.353(d) (2012). Nevertheless, the Board finds that there is clear and convincing evidence that the Veteran is unable to contract or to manage his own affairs, including the disbursement of funds without limitation, and the presumption of competency is overcome. In particular, the medical evidence of record clearly shows that the Veteran is still incompetent to handle his own affairs. The evidence, since 2002, shows that the Veteran has required intensive supervision, and has consistently been found to have difficulty with money. At times, he has acknowledged this difficulty. He has indicated that he does not always understand when he should pay his bills, he does not realize what he can (or cannot) afford based on the monies he monthly receives, and he is incapable of directing his own affairs. The VA treatment records clearly and repeatedly show that the Veteran does not manage his medications and often fails to report for appointments. Additionally, the treatment records clearly show poor reality and judgment testing. The Veteran has made the bald assertion that he is capable of handling money, but the detailed social work and treatment notes show that this has not been the case since 2002, when he was found to be incompetent. The Veteran's statements are outweighed by the other evidence of record documenting his inability to manage his financial affairs. As outlined above, the Veteran has a long history of severe and pronounced psychiatric impairment, including paranoid, auditory hallucinations, and impaired judgment. The record as a whole reflects that the Veteran's disorder renders him incompetent to manage his finances. Indeed, the evidence suggests that the Veteran has not been managing his own finances since 2002, and the Veteran's own VA treating mental health providers has repeatedly expressed concern over the Veteran's inability to manage his finances. After a full review of the Veteran's history and current financial/medical habits, the Board concludes 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. 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. There is no doubt that the Veteran is currently incapable of handling his benefits. See 38 U.S.C.A. §5107(b) (West 2002 & Supp. 2012); Ortiz v. Principi, 274 F. 3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The Veteran is incompetent for VA purposes, the appeal is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs