Citation Nr: 1332276 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-08 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether the Veteran is competent to handle disbursement of VA funds. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1974 to March 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO) that found that the Veteran was not competent to handle the disbursement of funds. FINDING OF FACT It is not shown by clear and convincing medical evidence that the Veteran lacks the mental capacity to contract or manage his own affairs, including the disbursement of funds, without limitation. CONCLUSION OF LAW The Veteran is mentally competent for VA purposes. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.353 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) In general, the Veterans Claims Assistance Act of 2000 (VCAA) sets forth VA's duties to notify and assist claimants regarding their claims. See 38 U.S.C.A. §§ 5103, 5103A. The term "claimant" as used in the VCAA applies only to claims for benefits under chapter 51 of title 38 of the U. S. Code. The duty to notify and assist provisions of the VCAA are not for consideration in competency determinations, as an applicant for restoration of competency is not seeking benefits under chapter 51, but, rather, is seeking a decision regarding how his/her benefits will be distributed under chapter 55. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Accordingly, the VCAA is not applicable to this case. See Holliday v. Principi, 14 Vet. App. 280 (2000) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). Regardless, inasmuch as the benefit sought is being granted, any notice defect or duty to assist failure would be harmless. Legal Analysis and Factual Background Under VA regulations, 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). 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. 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. § 3.353(d); see also 38 C.F.R. § 3.102. The Veteran is in receipt of 100 percent disability compensation, effective September 18, 1991. In September 2009, the RO issued a rating decision confirming a finding of incompetency based, in part, on the findings from a July 2009 VA examination. Also of record at the time was a statement from the Veteran's treating psychiatrist, Dr. Rabbani, who opined that the Veteran "seems to be stable and capable of handling his financial affairs." Subsequent evidence includes VA treatment records showing the Veteran is participating in group therapy and that his symptoms seem to be somewhat stable. On February 2009 field examination, the examiner recommended that a legal custodian continue managing the Veteran's financial affairs; however, the examination report noted the Veteran is aware of the source of his income, but not the amount. The report noted that he spends his money on groceries, dog food, veterinarian bills, gas for his car, musical equipment, and eating out, and that he maintains a checking account. On February 2011 psychological examination, the Veteran reported that "he has been taking his medication regularly" and that there were no issues with compliance. An examination revealed he was oriented to person, time, and place, his thought process and content were unremarkable, and he experienced no delusions or hallucinations. The examiner noted that he understood the outcome of his behavior and was not exhibiting inappropriate behaviors or engaging in obsessive/ritualistic behavior. As for his financial affairs, the examiner noted that the Veteran was able to provide a rough estimate of his benefit payments per month and that he (and not his fiduciary) manages his food, transportation, gasoline, cell phone bill, and entertainment/personal purchases. He reported currently working part-time and noted that when he receives his paycheck, he cashes it and uses those funds to pay for the above listed items. Based on these findings, the VA examiner determined that he "may not be competent to handle his financial affairs, for VA purposes," but recommended a social work field study to further assess this. A field examination was again conducted in March 2012. The examiner noted that the Veteran knows the source of his income, and receives a certain amount of money each month which he uses to pay for gasoline and eating out. The report also noted that the Veteran does work and earns extra spending money. The examiner concluded that he "has no capacity to handle funds" and noted "yes" in response to whether the Veteran requires the services of a fiduciary. Here, the Board finds the most probative evidence to be the field examination reports and VA examination report, which consistently noted that the Veteran is aware of the source of his funds and manages some money to pay for such things as food, gasoline, and other personal expenses. Notably, the February 2011 examination report noted that the Veteran was able to provide a rough estimate of his benefit payments per month, and was receiving a paycheck from working part time, which he managed without the help of a fiduciary and used to pay for expenses. In regard to the conclusions of these reports, the Board notes that the February 2011 examiner did not definitively determine the Veteran was unable to manage his financial affairs, but instead, stated that he "may" be unable to do so and recommended further evaluation. And while the field examiners did conclude that the Veteran was unable to manage his financial affairs, the findings noted on their reports, as discussed above, suggest otherwise. Additionally, the Board finds it significant that the Veteran's treating psychiatrist (who noted that he had been treating the Veteran for the past several years) submitted a statement finding him competent to handle his own financial and personal affairs. See July 2009 statement form Dr. Rabbani. Accordingly, the Board finds it impossible to conclude that the evidence "leaves no doubt" about the Veteran's incompetency. In view of the foregoing, the Board finds that the evidence in this case is not "clear and convincing" concerning the Veteran's incompetency, and the Board concludes that the Veteran is competent to manage his own affairs, including the disbursement of funds, without limitation. His appeal must be granted. ORDER Restoration of competency status for VA benefits purposes is granted. ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs