Citation Nr: 1335049 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-11 070 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Whether the Veteran may be considered competent for VA purposes. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 decision. Prior to this decision, he was scheduled for a personal hearing before a Decision Review Officer in March 2009. He was provided with notice of the scheduled date and time, but failed to report for this scheduled hearing. The Veteran requested a hearing before a Veterans Law Judge via videoconference. Such a hearing was scheduled in October 2010, and he was provided with notice of the scheduled time and date. However, he failed to report for the hearing and has not made any attempt to show good cause for his failure. Under these circumstances, the request for a hearing is considered to have been withdrawn. 38 C.F.R. § 20.704(d). The Board will therefore proceed to review the appeal based upon all the evidence currently of record. FINDING OF FACT It is clearly and convincingly shown and supported by definite medical opinion that the Veteran is not competent to manage his own funds without limitation. CONCLUSION OF LAW The Veteran is not mentally competent for the purpose of receiving direct payment of his VA benefits. 38 U.S.C.A. §§ 5107, 5502 (West 2002); 38 C.F.R. § 3.353 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In general, the Veterans Claims Assistance Act of 2000 (VCAA) sets forth VA's duties to notify and assist claimants regarding their claims. 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 benefits will be distributed under chapter 55. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Accordingly, the VCAA does not apply to this case. Nevertheless the regulations governing incompetency determinations provide their own due process requirements. 38 C.F.R. § 3.353(e). Careful review of the development of this case reveals that all required procedures have been followed in this case. The Veteran was properly notified of the proposed incompetency determination in March 2008, and he was offered the opportunity for a hearing on the matter. The decision on appeal was properly promulgated in October 2009. Analysis 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 own affairs, including disbursement of funds without limitation. 38 C.F.R. § 3.353(a). The RO has the sole authority to make official determinations of competency and incompetency for the purpose of, among other things, disbursement of benefits. 38 C.F.R. § 3.353(b) see also, 38 C.F.R. §§ 13.55 , 13.56, 13.57 (outlining the regulations pertaining to direct payment and the appointment of fiduciaries). Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, the RO 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 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); see also, 38 C.F.R. § 3.102 (reiterating VA's long-standing policy to resolve all doubt in favor of the Veteran). The Veteran is currently in receipt of VA compensation benefits due to paranoid schizophrenia, evaluated as 70 percent disabling. His total VA compensation award is 100 percent based upon a determination that he is unemployable due to his schizophrenia. Evidence of record reflects that the Social Security Administration also deems him to be unemployable due to schizophrenia, as he receives disability benefits from that agency as well. The evidence for consideration includes service treatment records, VA treatment records, Social Security evaluation records, and reports of a VA examination. A longitudinal review of the record establishes, clearly and convincingly, that the Veteran is not competent for the purpose of managing the disbursement of his VA benefit. 38 C.F.R. § 38 C.F.R. § 3.353. Service treatment records show that the Veteran began having psychiatric problems in service, as a result of which he was hospitalized and then separated from service in December 1973, with a diagnosis of schizophrenia. Soon after separation from service, the Veteran was granted service connection for schizophrenia, rated as 30 percent disabling, at that time. The disability rating was increased to 50 percent effective in 1981. He underwent several post-service hospitalizations at the VA for treatment and stabilization of his schizophrenia. Review of the evidence reflecting the Veteran's situation for approximately twenty or so years after service reveals that he led a tumultuous life related to his schizophrenia. He has had numerous jobs, none of them requiring even a moderate level of skill or responsibility. He had two divorces, both approved by the Courts on account of cruel and inhuman treatment toward each wife. He has multiple children, all of whom were placed into the foster system at one point or another, to avoid imminent risk to their life or health. He was apparently involved in the legal system and required to attend anger management and other counseling for domestic violence and other abusive behaviors. The Veteran's disease has had other effects upon his ability to keep himself together. His medical records reflect that he is a poor historian; for instance, reporting heavy illegal drug usage to some care givers and reporting no drug usage to others. He has been less than careful in reporting other important facts throughout the record. At times, he has mis-reported the number of children he has. Specifically with regard to his financial circumstances, his VA records reveal multiple instances of overpayment debts, as well as multiple failures to report changes in address, dependency status, and other indications of inattention to his responsibilities as a recipient of VA compensation. The most recent overpayment debt on account of the Veteran's failure to report a material change in his circumstances was declared in 2005. The report of a May 2005 psychiatric examination conducted on behalf of the Social Security Administration reflects that examiner's view that the Veteran's paranoid schizophrenia would interfere on a daily basis. His insight and judgment were both poor. The examiner assessed that the Veteran might have difficulty with complex tasks. His decision making was judged to have been impaired and it was noted that he had difficulty relating with others and dealing with stress. His overall prognosis was "poor, given lengthy history of psychiatric difficulties." The examiner noted that he "would appear capable of managing benefit payments in his own interest." However, it was recommended that he continue with psychiatric treatment. Effective in October 2006, the RO increased the Veteran's disability rating to 70 percent, and awarded a total disability rating based upon individual unemployability. At that time, he reported that he had not worked since 2003 due to chronic schizophrenia. Social Security and employer records confirm this report. Although the Veteran had apparently maintained a regular medication regimen with good compliance for many years after service, his VA medical records reflect that he only took his medications sporadically throughout 2004 and 2005, and stopped taking them altogether by 2007. Similarly, a certification from the RO shows that the Veteran had not been to a VA medical facility for medical care of any kind since 2007. The report of a December 2007 VA compensation examination, which as the Veteran has ceased any medical care, represents the most recent medical evidence available for review, reflects a deteriorating mental condition. Following a clinical interview and review of the Veteran's records, the examiner opined that the Veteran's activities of daily living were limited by his schizophrenia. The examiner noted that the fact that he was receiving Social Security disability benefits indicated that he is unable to hold down a job and concluded that since he was off medication, the likelihood of him returning to work seemed to be even less. The examiner also opined that the Veteran should have help managing his funds since he was no longer taking psychiatric medication, and "[h]is judgment would appear to be marginal in regard to his ability to manage his funds." The examiner opined as well that it appears, "he is at risk for further decompensation psychiatrically speaking the longer he goes off antipsychotics." A Global Assessment Score of 40 was assigned. The examiner concluded the report with the following comments: In summary, the Veteran has had chronic schizophrenia that has continued despite the absence of ongoing substance use of any significance as far as I can tell. He continues to have schizophrenic signs and symptoms that result in deficiencies in most areas of work, family relations, judgment, thinking, and mood unfortunately. These are chronic in nature and not expected to change although they might lessen to some degree if he resumes antipsychotic medication in the future. The assignment of a Global Assessment of Functioning Score of 40 as assigned in 2007 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. One of the examples given for this level of impairment is of being unable to work. Another is of illogical, obscure, or irrelevant speech. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition, The American Psychiatric Association (1994), (DSM-IV). Thus, the medical evidence of record does not inspire confidence in the Veteran's overall responsibility about money matters or other matters. Although one physician opined in 2005 that the Veteran appeared capable of managing his benefit payments in his own interest, that physician also recommended that the Veteran continue with psychiatric care. Two years later, in 2007, the Veteran had discontinued not only psychotropic medication, but also visits with psychiatric care providers, both of which actions are highly against medical advice, as reflected in his VA treatment records and the two examination reports detailed above. Thus, the VA examiner in 2007 recommended that the Veteran needed help to manage his funds in part because he was not seeking any medical or psychiatric care. Review of the Veteran's own written contentions submitted in support of the instant claim and his actions with regard to this claim does nothing to inspire confidence in his levels of responsibility either. He failed to report for three scheduled hearings in this matter, two before the RO and one before the Board, with no attempt to provide good cause. In his November 2009 notice of disagreement, he indicates that he cannot trust anyone. In multiple statements, he indicates he does not want a "constituent." He also focuses upon the effect his incompetency will have upon his ability to own a gun, and his "Brady rights." In a February 2010 statement, he expresses concern that the VA is not only preventing him from owning a firearm, but repressing him from getting a liquor license and from political office. He feels VA is making him a scapegoat. In his March 2010 substantive appeal, the Veteran asserts that the VA has based this incompetency decision upon his credit report. In this instance, the Board wishes to assure the Veteran that the contents of his credit report have not been accessed by the VA, and his credit status is not a consideration in this review; rather the focus of the incompetency determination is whether he demonstrates the mental capacity to contract or to manage his own affairs. 38 C.F.R. § 3.353. The medical opinion rendered after a full review of the Veteran's history and current financial habits concludes that the Veteran is not competent to manage his own funds without limitation. A finding of incompetency is consistent with the long-standing diagnosis of schizophrenia, for which the Veteran is in receipt of a total disability evaluation. This evidence is clear and convincing. 38 C.F.R. § 3.353(d); see also 38 C.F.R. § 3.102. The competent and probative evidence overwhelmingly confirms that the Veteran is incapable of managing his finances. The nonmedical evidence of record is consistent with the VA examiner's observations of the Veteran and the resulting informed medical opinion. As set forth above, the Veteran's own mostly irrelevant assertions in the matter only reinforce the Board's conclusion that he is not competent to manage the funds provided for his support by the taxpayers of the United States. Accordingly, the Board finds that the presumption of competency has been rebutted and finds that the Veteran is not competent for the purpose of receiving direct payment of his VA benefits. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 136 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER The Veteran is not competent to manage disbursement of funds, and the appeal is denied. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs