Citation Nr: 1326056 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-18 656A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether the Veteran is competent to handle disbursement of VA funds. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1978 and from April 1982 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which determined that the Veteran was not competent to handle the disbursement of funds. FINDING OF FACT The Veteran lacks the mental capacity to manage his own affairs, including the disbursement of funds. CONCLUSION OF LAW The Veteran is not 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 FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 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. This is because an applicant for restoration of competency is not seeking benefits under chapter 51, but is seeking a decision regarding how his benefits will be distributed under chapter 55. Id. Consequently, the Board is not required to address VA's efforts to comply with those provisions with respect to the issue currently on appeal. Regardless, the Veteran's VA, Social Security, and private treatment records have been obtained, to the extent possible. With respect to private records, the RO obtained the Veteran's treatment records from the York Street Clinic. He has not provided a release for the RO to obtain his records from St. Elizabeth's Hospital, despite the RO request to do so. See RO letter, dated July 21, 2009. Email correspondence dated in August 2009 notes that the Veteran refused to provide VA with records related to a psychotic episode two years earlier, as he felt it would be used against him. Therefore, additional efforts to obtain the Veteran's private treatment records are not warranted. The Veteran was also scheduled for a VA examination in March 2010; however, he failed to report. Therefore, remand for an additional VA examination is also not warranted. Competency For VA purposes, a mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or to manage his affairs, including the disbursement of funds, without limitation. 38 C.F.R. § 3.353(a). There is a presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his 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). Medical evidence is required for the rating agency to make a determination of incompetency. 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. The clear and convincing standard of proof is an intermediate standard between preponderance of the evidence and beyond a reasonable doubt. Fagan v. West, 13 Vet. App. 48, 55 (1999). It requires that a result be proven to a "reasonable certainty." Vanerson v. West, 12 Vet. App. 254, 258 (1999). In a March 2007 letter, Dr. B.O., a psychiatrist, requested that the Veteran obtain a representative payee for his Social Security Administration (SSA) benefits because he was unable to properly manage his finances for housing, food, and other necessities due to his diagnosed disabilities. An April 2008 submission from Dr. B.O. noted a diagnosis of chronic paranoid schizophrenia. A June 2007 letter was submitted by J.C., a case manager with the Oneida County Supportive Case Management Program, who requested a representative payee for the Veteran's VA benefits. He stated that the Veteran was unable to manage his finances due to symptoms of depression, paranoia, anxiety, and bouts of explosive disorder. York Clinic records dated June 2008 noted that the Veteran had previously been hospitalized in November 2007 for delusional behavior. VA records dated October 2008 noted reports that the Veteran had been hospitalized at another facility after making threats to his neighbors. Records from the York Clinic dated June 2009 stated that now was actually a good time for the Veteran to begin taking responsibility for his own funds. A separate statement from the York Clinic noted that the Veteran had been psychiatrically stable for one year. He lived in a supervised setting and spoke with counselors daily. It was stated that it was a wonderful opportunity for him to learn to budget with help and supervision from his counselors. He had agreed to leave his SSA payments with a representative payee to ensure his basic needs are met. The Veteran was scheduled for a VA examination in March 2010, but failed to appear. Restoration of the Veteran's competency status is not warranted in this case. The March 2007 and June 2007 opinions unequivocally state that the Veteran is not capable of managing his funds as a result of his disabilities. While the more recent June 2009 opinion noted that the Veteran was psychiatrically stable and functioning well, the request to allow the Veteran to manage his funds was apparently based on the idea that it would be beneficial to him for treatment purposes. The opinion clearly stated that the Veteran would learn to budget "with his counselors' help and supervision," and that his SSA payments would continue to be managed for him to ensure his needs were met. These statements suggest that the Veteran is still not competent to manage his affairs "without limitation" as contemplated by the regulations. The Board has considered the Veteran's own statements in support of his claim. In his February 2009 notice of disagreement, it was noted that he felt competent to handle his funds. However, such statements do not constitute competent medical evidence. See 38 C.F.R. § 3.353(c); Sanders v. Brown, 9 Vet. App. 525 (1996). The Board has reviewed the evidence of record and concludes that the Veteran is not competent to handle the disbursement of VA benefits. In so finding, the Board acknowledges the presumption in favor of competency found at 38 C.F.R. § 3.353(d). For a claimant to receive the presumption of competency, there must be reasonable doubt as to his mental capacity. However, the March 2007 and June 2007 opinions specifically stated that the Veteran was not competent, and the June 2009 opinion included statements which supported such a finding. There is no competent, countervailing opinion of record. A careful review of all of the evidence of record leaves no doubt that the Veteran is currently incapable of personally handling his VA benefits. ORDER Restoration of competency status for VA benefits purposes is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs