Citation Nr: 1325075 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-13 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether the Veteran is competent for the purpose of direct receipt of Department of Veterans Affairs (VA) compensation benefits. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and C.S. ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from July 1990 to August 1990. This matter came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran and his friend, C.S., testified before the undersigned Veterans Law Judge in September 2010. A transcript of his hearing has been associated with the record. In June 2011, the Board denied the appeal. The Veteran appealed the June 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2012 memorandum decision, the Court vacated the Board's decision, and remanded the claim to the Board for further proceedings. In June 2013, the Veteran submitted additional evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). FINDING OF FACT Giving the benefit of every reasonable doubt to the Veteran, the Veteran is presently competent to manage his funds without limitation. CONCLUSION OF LAW The Veteran is presently competent for the purpose of receiving direct payment of his VA benefits. 38 U.S.C.A. § 501 (West 2002); 38 C.F.R. § 3.353 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 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. Nevertheless, in light of the favorable outcome of this appeal, any possible deficiency of notice and assistance is harmless. Analysis The Veteran contends that he is now competent for the purpose of receiving direct payment of VA benefits. He asserts that he has demonstrated that he is capable of properly managing his own funds. The issue of whether or not a Veteran is competent to receive direct payment of VA benefits is controlled by 38 C.F.R. § 3.353(a) which provides that 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. 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. See 38 C.F.R. § 3.353(c). The Board notes that there is a presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary'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. See 38 C.F.R. § 3.353(d). Some of the facts in this case are not in dispute. A 70 percent rating has been in effect for the Veteran's psychiatric disorder since March 2006. Records on file reflect that in years past the Veteran has been hospitalized for his psychiatric disorders, and that he has also been a resident in a VA domiciliary. A VA examination was conducted in May 2006. The Veteran reported that his most distressing problem was obsessive thinking. The examiner noted, based on the Veteran's reported obsessions, compulsions, and delusions, that his obsessive compulsive disorder was to the point where it was affecting the Veteran's ability to function. The Veteran reported that he was barely able to handle his activities of daily living, noting that he did not think that he was competent to manage his financial affairs. Following examination, the examiner concluded that the Veteran had severe impairment in all areas of psychosocial functioning. He determined that the Veteran was not competent to manage his financial affairs. A VA domiciliary discharge record dated in August 2006 indicates that the Veteran was admitted in June 2006 and successfully completed the program. The author of this report notes that the Veteran did not have a payee for his monthly income but that he had admitted that he felt it was time to obtain one due to his inability to concentrate or maintain concentration without obsessing over everything. In a November 2006 rating decision, the RO proposed a finding of incompetency. That proposal was carried out in a June 2007 rating decision. The Veteran was hospitalized from July 2007 to August 2007 and again during August 2007. At discharge, the author of the discharge summaries indicated that he was generally competent. In an August 2007 statement, the Veteran stated his belief that his schizoaffective disorder was out of control. He was again hospitalized in October and December 2007. In January and February 2008 the Veteran was admitted to a VA facility through its emergency room after stating that he was suicidal. His competency was not addressed in the records pertaining to these hospitalizations. On VA examination in June 2008, the examiner noted that the Veteran's obsessions interfered with self care. She indicated that the Veteran did not know the amount of his benefit payments or the amount of his monthly bills. She noted that he did not prudently handle payments and did not personally handle money and pay bills. She concluded that the Veteran was not capable of managing his financial affairs. A January 2009 statement from the Veteran's VA psychiatrist indicates that the Veteran was being followed in the outpatient clinic, and that he was doing well on his medication. He stated that the Veteran was competent to handle his funds. A VA field examination was carried out in February 2009. This examination included an interview at the Veteran's current residence, with his power of attorney (POA) and housemate C.S. present. The examiner noted that the Veteran was aware of the amounts and sources of his income, but due to his mental condition he lacked the capacity to budget his funds or prioritize his spending. He noted that the Veteran's payee/father had alleged that C.S. had recently taken a sum of money for his own use from the Veteran's savings without the Veteran's knowledge or permission. When asked about those allegations, the Veteran confirmed them and C.S. did not deny them. The Veteran stated that he and C.S. had made an arrangement for repayment, noting that C.S. planned to repay the Veteran with the proceeds from the sale of the Veteran's own trailer. When asked how C.S. could reimburse him with the proceeds from the sale of property that did not belong to him, the Veteran was unable to respond. The examiner noted that the Veteran often deferred many questions to C.S. The Veteran also requested that the examiner explain the meaning of POA as he did not understand the term. The examiner noted that the Veteran currently lived with C.S. and that it was clear that C.S. exerted much influence over the Veteran. He noted that the Veteran was easily manipulated and influenced by others. During the interview, he advised the Veteran to revoke the POA given to C.S. He concluded that the Veteran's current living situation was unstable, and that he was concerned that C.S. was taking financial advantage of the Veteran. He opined that the Veteran remained mentally incompetent for VA purposes. The field examination also included an interview with the Veteran's father, who was his payee. In a February 2009 statement, the Veteran's father stated that he was his son's fiduciary. He indicated his belief that the Veteran was being manipulated by his friend, C.S. He stated that due to that manipulation, he was unable to control his son's spending. As the result of this statement, a new payee was assigned to the Veteran. In a March 2009 statement, the Veteran indicated that he was not being manipulated by his friend and POA. He noted that his friend had seen him through a very difficult time. The Veteran was afforded an additional VA examination in February 2010. Following interview and examination, the examiner concluded that the Veteran was not capable of managing his financial affairs. She noted that the Veteran knew the amount of his benefit payments and monthly bills, but was unable to prudently handle payments. She indicated that the Veteran's co-morbid diagnoses would ultimately hinder his ability to manage his finances. She pointed out that he required assistance in all areas, including daily living tasks, mediations, and financial management. At his July 2010 hearing, the Veteran testified that he was able to manage cash during the course of a month. He acknowledged that at one point he was unable to handle his own affairs, but that he had since changed treatment providers and was more stable. He noted that he had not been hospitalized in about three years. He indicated that his friend, C.S., was his landlord. He noted that he used a computer based program to help him manage his funds. The Veteran's friend, C.S., testified that the Veteran could manage the home while he was away with his wife. He stated that he had known the Veteran since they were children. A May 2010 letter from R.M., M.D. at VAMC Washington, DC, reflects that he had been treating the Veteran for over a year. He wrote that the Veteran had been doing well on his medications and was compliant with follow-up appointments. It was noted that the Veteran was planning on buying a home. Dr. M. said that competency was situation specific; he had interviewed the Veteran regarding financials and the intricacies of purchasing a house, and the Veteran showed knowledge of the requirements. Dr. M. deemed the Veteran competent to manage his financial affairs. A May 2013 letter from D.R.W., property manager, reflects that the Veteran's demeanor had improved over the previous four years. She said that when she first met the Veteran, he was depressed and withdrawn; currently, the Veteran always had a smile and was need and well-groomed. She wrote that the Veteran was up-to-date with current events. S.G., M.D. at VAMC Washington, D.C., stated in May 2003 that he had been the Veteran's primary care provider since 2006. He summarized the Veteran's background and then recounted the Veteran's improvement over the previous five years. He indicated that the Veteran had stabilized his medical regimen and had reduced his need for mental health interventions. Dr. G. opined that the Veteran was competent to manage his own funds. In June 2013, G.C., the Veteran's pastor, wrote that she had known the Veteran for 10 years. She had known the Veteran when he had been hospitalized years previously. She indicated that the Veteran was now very different, in that he now seemed very stable and well kept. V.E.G., L.P.N., wrote in June 2013 that he had known the Veteran since his hospitalizations in 2007. She had observed a drastic improvement since then. She said that the Veteran was currently able to converse with comprehension and accuracy. She had been shopping with the Veteran and observed his behavior. She felt that the Veteran was competent. E.C. stated in June 2013 that when he first met the Veteran, he appeared depressed and withdrawn. He noted that the Veteran had changed, and the Veteran now understood the consequences for his actions. In June 2013, R.M., M.D., wrote a second letter on behalf of the Veteran. Dr. M. opined that the Veteran had shown a level of maturity and understanding that merited removal from the VA Representative Payee Program. He noted that the Veteran had kept up with his psychiatric appointments and was taking his medications as prescribed. He said that the Veteran understood the concepts and consequences of overspending. He wrote that the Veteran was currently managing his allowance well and was getting things that he needed as compared to his wants. Dr. M. opined that the Veteran should be allowed to manage his finances and purchase a home, as he was capable of handling both responsibilities. Having carefully reviewed the record, the Board has determined that the Veteran is now competent to manage his financial affairs. The Board acknowledges the Veteran's prior psychiatric hospitalizations during the period on appeal. Indeed, acknowledged during his September 2010 Board hearing that he previously was not capable of handling his own funds. The June 2008 VA examination report, the February 2009 VA field examiner's report, and February 2010 VA examination report all weigh against a finding of competency. However, the evidence of record reflects that over the time of appeal, the Veteran's mental capacity has improved. In particular, the May 2010 and June 2013 letters from Dr. M., along with the May 2013 letter from Dr. G., all document the Veteran's improvement over the preceding four years. Dr. M. and Dr. G. are both medical doctors employed by VA at VAMC Washington, D.C., and they both drew from their clinical experience and interactions with the Veteran to support their opinions that the Veteran is now competent to handle his own financial affairs. 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). In this case, as recounted above, the evidence shows that over time, the Veteran has shown improvement in his ability to comprehend financial affairs. 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 progressive nature of the 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 currently 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 presently competent to manage his own financial affairs 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 benefit purposes is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs