Citation Nr: 1329387 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-37 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether the Veteran is competent for Department of Veterans Affairs (VA) benefits purposes. REPRESENTATION Appellant represented by: Susan Paczak, Attorney at law WITNESSES AT HEARINGS ON APPEAL Appellant and L.E. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from April 1999 to July 2003. This appeal comes before the VA Board of Veterans Appeals (Board) from a June 2009 rating decision of the VA Regional Office (RO) in Pittsburgh, Pennsylvania that determined that the Veteran was incompetent to handle the disbursement of VA funds. The appellant testified before RO personnel in May 2009, as well as in September 2011 before the undersigned sitting at Pittsburgh, Pennsylvania. The transcripts are of record. Following review of the record, the appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is service connected for cognitive mood disorder associated with a seizure disorder, rated 70 percent disabling; a seizure disorder, rated 10 percent disabling; and residuals of neck injury and a left chin scar, each assigned noncompensable ratings. He is in receipt of a total rating based on unemployability due to service- connected disability. He was adjudged incompetent for VA benefits purposes effective from June 2009, primarily based on the findings of a VA examination conducted in August 2008. The issue of whether a veteran is competent to receive direct payment of VA benefits is controlled by 38 C.F.R. § 3.353(a) (2013) 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 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 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) There is a presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency. 38 C.F.R. § 3.353(d). Following an April 2008 VA psychological examination the examiner opined that the Veteran had cognitive deficits and a mood disorder secondary to his service-connected seizure disorder. These disorders rendered the appellant unemployable, and the examiner opined that given the appellant's history of financial mismanagement, it was in his own best interest to continue to have his mother as payee. The examiner indicated that the appellant acknowledged that he was not able to manage his money well. He was deemed incompetent to manage his funds. The record reflects that subsequent thereto, a February 2009 letter was received from the Veteran's father who elucidated in detail the many ways that the appellant exercised appropriate and proper management of his daily affairs and monies without incident or history of mismanagement. It was indicated, however, that the appellant had been assisted by family and friends with certain tasks and needs. By rating action dated in June 2009, the Veteran was found to be incompetent to handle disbursement of his funds. The Veteran's mother wrote in June 2009 that except for a five to six month period between 2005 and 2006 when he was being stabilized on medication, the appellant had appropriately handled his finances. The Veteran and his father (the payee) testified at the September 2011 hearing that since the minor problems in the mid 2000s, the appellant had had no trouble living on a budget and within his means. They testified that the appellant was taking care of his responsibilities, and did not make impulsive, extravagant or ill-advised purchases. The Veteran's father emphasized that he had no problem with the appellant taking over his own finances. The record reveals that the fiduciary reports are being prepared by the appellant's father. Although the appellant and both of his parents agree that he is indeed competent and can handle his own financial affairs, and although both the appellant and his father presented credible testimony, the record is now stale. Regrettably, there is no current or recent medical evidence addressing the nature of the Veteran's neuropsychiatric status and the impact, if any, on his competency to handle funds.. For example, as of this writing, the Veteran has not had a VA examination in this regard in over five years, and while VA outpatient records reflect that he has received regular follow-up and treatment for neuropsychiatric disability the available records date only through early July 2010, more than three years ago as of this writing. Therefore, further development is warranted, to include a new VA examination, and requests for records to ascertain whether the appellant's status at present is adequate for a finding of competency. The record reveals that the appellant receives Social Security benefits, and he testified in 2011 that these were paid to him in his own name. VA has never, however, attempted to discover how any Social Security benefits are paid. Hence, further development is in order. Murincsak v. Derwinski, 2 Vet.App. 363, 370 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and obtain a copy of any decision addressing whether the appellant is competent to receive Social Security benefits paid in his own name. If Social Security has found that the appellant is not competent to be paid directly, any medical records addressing that determination must be secured for the claims folder. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Request all VA outpatient records dating since July 2010 from the Pittsburgh, Pennsylvania VA medical system which pertain to care for psychiatric and seizure disorders, and associate with the claims folder. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, the RO should schedule the Veteran for a VA social and industrial survey in order to identify any degree of impairment he may have handling finances. An interview of the Veteran's fiduciary should also be accomplished regarding the Veteran's competency to handle funds. 4. Then, schedule the Veteran for an examination with a VA psychiatrist to determine his current competency. The claims folder, including the social industrial survey, as well as access to Virtual VA and a copy of this remand, is to be provided to the psychiatrist. After a thorough examination and review of the record, the psychiatrist should determine whether the Veteran is competent for VA benefits purposes. A fully explanatory rationale, with reference to the evidence supporting any opinion offered, must be provided. If the examiner cannot provide an opinion without resorting to speculation, she or he must explain why there must be resort to speculation. 5. After taking any further development deemed appropriate, readjudicate the issue. If the benefit sought is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ DEREK R. BROWN 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) (2013).