Citation Nr: 1342371 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-27 109 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Competency to handle disbursement of VA funds. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to October 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2008 rating decision in which the RO determined that the Veteran was not competent to handle the disbursement of VA funds. In April 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2010. In January 2010, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In a June 2010 substantive appeal, the Veteran requested a Board hearing at the RO. A December 2011 letter informed the Veteran that his hearing was scheduled in February 2012. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). The Virtual VA paperless claims processing system contains additional VA field reports and fiduciary records that have been considered. FINDINGS OF FACT 1. All development and notification actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. There is clear and convincing medical evidence that the Veteran lacks the mental capacity to contract or to manage his own affairs, including disbursement of funds without discretion. CONCLUSION OF LAW The veteran is not competent to handle disbursement of funds. 38 U.S.C.A. § 501(a), 5107(West 2002); 38 C.F.R. §§ 3.102, 3.353 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations Generally, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Veteran is challenging a determination that he Veteran is not competent to handle VA benefit funds. Applicable regulations provide specific due process requirements. Whenever it is proposed to make an incompetency determination, the beneficiary will be notified of the proposed action and of the right to a hearing. 38 C.F.R. § 3.353(e). The RO proposed a finding of incompetency in a September 2007 rating decision. In an attached forwarding letter, the RO advised the Veteran that a finding of incompetence may require the appointment of a fiduciary to manage VA benefits. The RO further advised the Veteran of his right to submit additional evidence, information, and statements and to request a personal hearing. A copy of the correspondence was provided to the Veteran's representative. In a May 2008 rating decision, the RO noted that no response had been received from the Veteran or his representative. The Veteran did not submit or identify any additional evidence, and the RO entered a finding of incompetence to handle VA funds. Therefore, the Board finds that the specific due process requirements applicable to his appeal have been satisfied. II. Analysis 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 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. § 3.353(d). The Veteran served as a U.S. Air Force aircraft mechanic. Service treatment records show that he experienced a paranoid type schizophrenic reaction of moderate severity in June 1971 following a period of alcohol and drug abuse. He received a medical discharge. In November 1971, the RO granted service connection for schizophrenic reaction, paranoid type. Post-service VA treatment records, civil legal records, and lay statements document a long history of mental health treatment and hospitalization including commitment by civil authorities for symptoms of paranoid schizophrenia and substance abuse. The Veteran has not been gainfully employed since 1973. VA has rated his disability as 50 percent or higher since the day following discharge from active service and as 100 percent disabling since 1991. In July 2007, the Veteran was transported to a VA Medical Center emergency room by police who responded to a report from the Veteran's sister and his attending VA psychiatrist. The Veteran was reportedly non-compliant with medications and had been starting fires in his residence. The Veteran presented with symptoms of paranoia and burns on his hands. After several days of inpatient treatment, his condition stabilized with medical intervention. In a letter dated later the same month, the Veteran attending VA psychiatrist noted that he had engaged in discussions with the Veteran's sister and concluded that "...[the Veteran] most likely needs a guardian appointed if for no other reason than to protect him from drug dealers and thugs living in [his city of residence]...He is an easy target for them, plying him with alcohol and taking his money and drugs." Following the RO's May 2008 finding of incompetence to handle VA funds, a fiduciary was appointed by VA. The civil probate court in the jurisdiction of the Veteran's residence also appointed the same fiduciary to handle estate funds. Subsequent records of VA mental health care reflect continued episodes of alcohol and drug abuse, alcohol induced seizures, and occasional noncompliance with medications. In August 2008, an attending VA psychiatrist noted his full agreement with the need for a fiduciary and his intent to decline any recommendation to remove the fiduciary until the Veteran ceased substance abuse. VA field examiner's reports in August 2008, September 2009, and November 2012 also note recommendations of continued need for a fiduciary. These medical and legal records that show the Veteran's decompensation and hospitalization because of psychotic illness served to corroborate medical opinion that the Veteran was incapable of managing his own affairs. The Veteran has provided no medical evidence in rebuttal of the determination of incompetency. During a January 2010 RO hearing, the Veteran testified that he was permitted a personal spending account provided by the fiduciary. He stated that he now properly managed that portion of his VA and Social Security Administration disability benefits but acknowledged accumulating debts prior to the appointment of the fiduciary. The Board has considered the Veteran's own assertions advanced in support of his appeal, and does not doubt the sincerity of his belief that the finding of incompetency was erroneous. Notwithstanding the Veteran's own assertions as to his current satisfactory management of his allowance, however, the Board finds there is clear and convincing medical evidence of severe mental health disability and recurring substance abuse that impairs the Veteran's his mental capacity to contract or to manage his or her own affairs. As there is clear and convincing evidence medical against a finding of competency, the benefit-of-the-doubt rule is not for application, and the Board must deny the claim on appeal. See 38 U.S.C.A. § 5107(b); 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER As the veteran is incompetent to handle disbursement of VA funds, the appeal is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs