Citation Nr: 1325795 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-00 040A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Competency to handle the disbursement of funds. ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO). The appeal is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Board finds it necessary to remand the case to the AMC for additional development and due process considerations. VA regulations provide 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. 38 C.F.R. § 3.353(a) (2012). Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, VA 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). 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. 38 C.F.R. §§ 3.102, 3.353(d) (2012). By way of background, in April 2004, the Veteran was awarded nonservice-connected pension, effective February 23, 2004. He was found to be disabled for pension purposes due to degenerative joint disease of the lumbar spine, gastroesophageal reflux disease, and hypertension. In December 2006, a VA psychiatrist issued a statement as follows, "Please consider appointing a fiduciary for [the Veteran]. His ongoing alcohol consumption causes him to inappropriately use his funds and then need VA to help with finding placement such as in a DOM." A handwritten note on this report indicates "homeless." Given the statement from the psychiatrist in December 2006, the RO proposed to find the Veteran incompetent to handle disbursement of funds. Following notice to the Veteran in February 2007, the RO issued a rating decision proposing the incompetency finding in May 2007, which was followed by the October 2007 rating decision under appeal. The Veteran's VA treatment records show that the Veteran sought inpatient detoxification from alcohol in September 2007 due to drinking "a lot" every day for the prior month. In November 2007, the Veteran was referred to a VA mental health clinic by a social worker, at which time he reported that he had been abstinent from alcohol for more than a year, despite the showing in the record of treatment two months prior. In April 2008, a VA outpatient therapist submitted a statement in favor of finding for competency. The therapist reported that the Veteran was admitted for an outpatient addiction treatment program at the Hines VA Hospital in December 2007, but that he "has been well motivated and actively engaged in all weekly group therapy sessions. All of his random urine drug screens have been negative. He has been able to make his own decisions and appears readily able to handle his finances." However, a November 2009 VA social work assessment shows that the Veteran had broken his arm in January 2009 after a fall. He reported that he had been drinking at the time. The social work assessment shows that the Veteran was irrational, had poor judgment, and was unable to provide for his own safety. May 2009 records show that he was in an inpatient detoxification program at VA from March 11, 2009, to May 26, 2009. He reported drinking a case-and-a-half of beer on a daily basis. The discharge report shows the notation that the Veteran was in his third treatment for substance abuse, but that he returned to addictive behavior once back in the community. The Veteran declined aftercare at the time of his discharge from this program. On June 9, 2009, however, the record shows that the Veteran again sought treatment for substance abuse. At this time, the Veteran reported to the physician that he had prior substance abuse problems, but that he "has been sober on the order of 2 years per his report." The Board notes that this was just two weeks following the prior inpatient substance abuse program. There are no additional records of VA treatment in the paper or electronic claims file. The Board notes that the electronic claims file shows that the Veteran was incarcerated for two days in December 2010, but the nature of the incarceration is not noted. While the April 2008 therapist's opinion supports a finding of competency, the fact that the Veteran received inpatient treatment related to his alcohol abuse in 2009, and also broke his arm while drinking in 2009, tends to show that he may indeed lack the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. There has not, however, been an opinion rendered as to this question since the 2006 and 2008 statements noted above. Thus, there is not currently a definite expression regarding the question of incompetency. See 38 C.F.R. § 3.353(c). Consequently, the Board finds that a remand is necessary for a VA examination to properly evaluate the Veteran's mental capacity. See 38 C.F.R. § 3.353(b)(3) (referring to the provisions regarding reexaminations in 38 C.F.R. § 3.327(a)). The Veteran's claims files, neither paper nor electronic, include records dated after June 9, 2009. These most recent records available for review reflect treatment at the Hines, Illinois, VA Medical Center (VAMC). Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Under these circumstances, the RO must obtain all relevant VA clinical records dated since June 9, 2009. Accordingly, the case is remanded for the following action: 1. The AMC must contact the Veteran to request that he identify or submit any additional pertinent evidence in support of his claim, to include all VA and non-VA medical providers who have treated him for any substance abuse program during the course of this appeal. Based on his response, the AMC must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the AMC must obtain the Veteran's updated treatment records since June 9, 2009, from the Hines, Illinois, VAMC. All attempts to secure this evidence must be documented in the claims file by the AMC. If, after making reasonable efforts to obtain the named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for an appropriate VA examination to assess his competency. The claims file and all electronic records, to include on Virtual VA, must be made available to the VA examiner, and the examiner must specify in the opinion that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must provide an opinion as to whether the Veteran lacks the mental capacity to contract or to manage his own affairs, including disbursement of funds without limitation. Should the Veteran fail to appear, the examiner must so state, and must then render the opinion based upon the evidence of record without examination. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The examination report must be typed. 3. The AMC must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the examination has been completed, the AMC must review the examination report to ensure that it is in complete compliance with the directives of this remand. An examination report must be returned to the examiner if it is deficient in any manner and the AMC must implement corrective procedures at once. 5. Thereafter, the AMC must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).