Citation Nr: 1415080 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 11-08 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Whether the Veteran is competent for the purpose of receipt of direct payment of the Department of Veterans Affairs (VA) disability compensation benefits. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the VA Regional Office (RO) in Sioux Falls, South Dakota that found him incompetent to handle disbursement of funds. The Veteran testified at hearings before a Decision Review Officer (DRO) at the RO in January 2011 and before the undersigned Veterans Law Judge via video-conference in April 2012. Transcripts are of record. FINDING OF FACT The preponderance of the competent evidence of record, medical and lay, shows that the Veteran lacks the competence to manage his own financial affairs. CONCLUSION OF LAW The Veteran is not competent to handle the disbursement of VA funds. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.353, 3.535 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In Sims v. Nicholson, 19 Vet. App. 453, 456 (2006), the United States Court of Appeals for Veterans Claims (Court) explicitly held that VA's duties to notify and assist do not apply to competency determinations. This is so because 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. 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. 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. § 3.535(a). There is a presumption in favor of competency. 38 C.F.R. § 3.353(d). Where reasonable doubt arises regarding a Veteran'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. A medical opinion 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 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). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board has reviewed the evidence of record and concludes that the Veteran is not competent to handle the disbursement of his VA benefits. In so finding, the Board acknowledges the presumption in favor of competency. 38 C.F.R. § 3.353(d). Here, however, despite the Veteran's desire to be declared competent, the evidence of record supports a finding of incompetency. Service connection is in effect for posttraumatic stress disorder (PTSD), which is rated 100 percent disabling. The Veteran has been incarcerated since August 2012 for Driving Under the Influence (DUI). Here, the most probative medical evidence of record weighs in favor of a finding that the Veteran is incompetent for VA purposes. The initial finding of incompetency was proposed following an October 2009 letter from two of the Veteran's treating VA psychiatrists and his VA suicide prevention coordinator. The letter states unequivocally, "We do not think that he is capable of handling his finances in a prudent fashion, and believe he needs a payee." Within the letter, this opinion is supported by a discussion of the Veteran's diagnosed cognitive disorder, alcohol dependence, marijuana dependence, depression, anxiety disorder, PTSD, and other substance addiction. The Veteran had a history of suicide attempts and psychiatric hospitalizations. He had most recently been hospitalized four days prior after a suicide attempt by overdosing on his psychiatric medications. The three VA personnel felt that his home environment was not safe and that his cognitive disorder had deteriorated further since its diagnosis. VA treatment records show that in January 2011, two days after his DRO hearing, the Veteran asked a treating psychiatrist to write a letter "saying that he is doing well on his medications." She told him that his treatment notes would reflect that his mood and anxiety were doing better, but "I'm not going to write a letter and...I'm not going to say that he should have control of his finances. I am not convinced that [the Veteran] should have control of his finances." The Veteran was provided with a VA competency examination in February 2011. The VA examiner, a Board-certified psychiatrist and neurologist, reviewed the claims file and interviewed the Veteran in person for 2.5 hours. She noted several inconsistencies in the Veteran's statements. For example, he reported to her that he had not had any alcohol since May 2010, when he in fact had failed a Breathalyzer test just a few months prior in November 2010. He also reported that a DUI in Spring 2010 was his third, but the claims file shows a report of three DUIs as early as 1999. The VA examiner characterized this as the minimizing of a person with substance abuse issues, rather than intentional lying. The VA examiner reviewed August 2010 VA neuropsychological testing, which showed that details cause the Veteran to become overwhelmed, as well as a lot of difficulty with memory. The testing also showed "difficulty understanding money management and concepts," and a struggle to perform "actual mathematical calculations as well as abstractive understanding." He was diagnosed with a cognitive disorder, not otherwise specified (NOS) as a result of the testing. When the Veteran seemed surprised to hear some of the details of his medical records during the examination, the VA examiner stated that this is consistent with the level of alcohol dementia from which he likely suffers. The VA examiner concluded that the Veteran is not competent to handle his own finances and "at this point in time he needs to have a payee." She supported this opinion with a thorough rationale and citations to the record. VA treatment records show that in May 2011 the Veteran failed a Breathalyzer test as part of the VA 24/7 substance abuse program, which resulted in the threat of jail time. The Veteran attempted suicide by overdose of his psychiatric medications in May 2011 rather than face jail and was put on a Board of Mental Illness hold and hospitalized. The mental health records surrounding this time period show diagnoses of malingering, alcohol dependence, polysubstance dependence, depression, NOS, anxiety disorder, NOS, and cognitive disorder, NOS. Finally, with respect to medical evidence, the Board notes that at the April 2012 hearing, the Veteran reported a November 2011 panel with VA physicians and the VA fiduciary team that resulted in a plan to reinstate his competency. According to testimony, after six months of compliance with the plan his competency would be revisited. While no report or objective evidence of this meeting is of record, there is no evidence, medical or lay, of a finding of competency by any VA medical personnel. Moreover, the Veteran was incarcerated shortly after the hearing in August 2012. The most probative non-medical evidence of record also weighs in favor of a finding that the Veteran is incompetent for VA purposes. An October 2009 bank statement shows several checks reversed for insufficient funds and the account becoming overdrawn several times in a 30-day period. VA social work records show that the Veteran attended some financial education groups in November 2010 but displayed confusion about financial issues. The record also contains significant probative evidence from the Veteran's Fiduciary and Payee. Since December 2009, a VA Field Examiner has served as the Veteran's Fiduciary and a local bank has served as his Payee. The same individuals have functioned as his dedicated Fiduciary and Payee for the entire appeal period. The record contains two Adult Beneficiary Field Examinations and Reports. The first, dated December 2009, occurred before a fiduciary was appointed and shows that the Veteran did not speak coherently and could not provide any information about his monthly financial obligations except that he "had to pay his bills." The second, dated November 2013, was conducted by his Fiduciary, who by that time had interacted regularly with the Veteran for nearly four years. Following an extensive report and interviews with the Veteran, his spouse, his Payee, and his case manager at the prison, the Fiduciary opined that the Veteran was still unable to handle his own financial affairs without assistance. Reports and communication between the Fiduciary and the Payee dated between October 2009 and April 2011 provide information as to the Veteran's competence with finances. A March 2010 e-mail shows that the Veteran either forgot to disclose or hid a $7,000 credit card balance from them for more than three months. An April 2010 email reflected that he had received a disconnect notice on his water bill because he did not take the necessary steps so that his Payee could make the payment. Many times over the course of the appeal period, the Payee expressed that the Veteran "did not get it," referring to the basic financial principles of the Payee process. The Veteran was also shown to repeatedly request money to pay the bills of adult siblings and adult step-children and appeared not to comprehend why the Payee would not authorize the use of his money for the medical, utility, or vehicle bills of other individuals. In September 2010, the Payee noted that she believed "this is what put him in such a financial bind." The February 2011 VA examiner noted that "[h]e does not understand why the government would not want him to help his stepchildren out. This has been explained to him by several people, including [two treating VA psychiatrists, the VA suicide prevention coordinator] and myself today." The Veteran also frequently made purchases (e.g., a snow blower, a new cell phone) before clearing them with his Payee and Fiduciary, or went ahead and made expenditures after he was told that they would be denied. In a March 2011 email, the Payee expressed the opinion that the Veteran "really does need a Conservatorship." An April 2011 email showed continued overdraft issues. The Board has reviewed the evidence of record and finds that the clear and convincing evidence leaves no doubt that the Veteran's is unable to manage his own affairs, including disbursement of funds without limitation. Thus, the presumption of competency is overcome. The opinions of the VA psychiatrists, VA suicide counselor, February 2011 VA examiner, Fiduciary, and Payee, clearly show, are convincing, and leave no doubt that the Veteran is incompetent to manage his own affairs. Importantly, no VA examiner during the pendency of the appeal has deemed the Veteran to be competent for VA purposes or otherwise indicated that his court-appointed Fiduciary and Payee should be terminated. Rather, all of the VA medical opinions of record are in favor of a finding of incompetency. The Fiduciary and Payee are not medical professionals, but their opinions are deemed probative and persuasive as they were based on an overall familiarity with the Veteran's behavior over a period of years. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Moreover, they are supported by specific examples of the Veteran's ongoing behavior demonstrating his incompetence, as well as medical evidence of his psychiatric and substance abuse diagnoses. Conversely, the only evidence in support of competency, other than the Veteran's own contentions, is a two-sentence letter from a private family physician Dr. DeHaan dated March 2011. It states, "I am the family physician caring for [the Veteran]. It is my opinion that he is capable of managing his own money/funds independently." While the physician's letter is considered credible, it contains no rationale and no indication that the claims file was reviewed. There is no way of knowing what level of familiarity Dr. DeHaan has with the Veteran or upon what kind of examination or records he based his opinion. The RO requested that the Veteran provide a release in order to obtain treatment records from Dr. DeHaan but received no response. Therefore, as the March 2011 opinion of Dr. DeHaan does not reflect adequate consideration and analysis of the relevant medical evidence of record, to include evidence related to the severity of the Veteran's mental condition, the Board finds the basis of the provided opinion to be, at best, incomplete, which significantly limits the probative value accorded this opinion. Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). Moreover, following the March 2011 opinion, the Veteran continued to exhibit behavior showing an inability to handle his finances in his own best interest as noted by the continued overdraft issues in April 2011 and November 2013 Adult Beneficiary Field Examination and Report. The Board has considered the lay testimony and contentions of the Veteran with regard to restoration of a determination of competency. At his January 2011 DRO hearing, he testified that his anxiety had caused his financial trouble in 2009 and felt that a change in medications in the fall of 2010 helped him to reach the point where he could manage his own finances. He stated that he wanted the responsibility back to run his life and that he was capable of doing so. However, just two days later his treating VA psychiatrist refused to write a letter for him, stating that she was not convinced he could handle his finances. Less than a month later, the February 2011 VA examiner opined that he was not competent to do so. He also testified that he was no longer drinking, but the record shows a DUI in November 2010 and a failed Breathalyzer in May 2011. At his April 2012 Board hearing, he contended that his competence should be reinstated because he wanted the responsibility for himself and his family. He stated that because he was 63 years of age, he could not do much physically and it would give him something to do, mentally. He testified that his Fiduciary and Payee had all his bills and loans caught up or paid off within three months of the beginning of that arrangement. However, the Board notes that this is inconsistent with the reports and communications of the Fiduciary and Payee. For example, a September 2010 email from the Fiduciary states, "We still believe that he may have many checks that are outstanding because we have seen many copies from the bank account that he used to have....It has taken eight months to finally get all of the bills into the bank so that payment can be made on time every month." He also denied that family members come to him often for financial assistance, but this is also inconsistent with the record. Almost every email between the Fiduciary and the Payee discusses the Veteran wanting money to pay a bill for someone else. Due to the numerous inconsistencies with the other evidence of record, the Board finds the Veteran's lay statements are neither credible, nor probative, nor persuasive. Dalton; Caluza. Thus, the Board finds that the lay statements and opinion of Dr. DeHaan are outweighed by the probative, clear, and convincing opinions of the VA examiner, Fiduciary, Payee, and VA providers, that the Veteran is not competent to manage his affairs. Therefore, the Veteran's appeal must be denied. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs