Citation Nr: 1452001 Decision Date: 11/24/14 Archive Date: 12/02/14 DOCKET NO. 12-20 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether the Veteran is mentally competent to handle the disbursement of funds for Department of Veterans Affairs benefits purposes. ATTORNEY FOR THE BOARD M. Walker, Counsel INTRODUCTION The Veteran served on active duty from October 2005 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDING OF FACT Evidence of record indicates that the Veteran has significant problems with calculation, is unaware of his basic necessities and needs, is unable to prioritize those needs, is unable to manage money through a bank, has not demonstrated an awareness to budget his expenses, requires assistance with meeting his financial obligations, and is at risk for giving away or spending large amounts of money for in appropriate goods or services due to his severely-impaired judgment. CONCLUSION OF LAW The Veteran is not competent for the purpose of receiving direct payment of his VA compensation benefits. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.353 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Before proceeding to the analysis of this case, the Board notes that 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 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, and the Board is not required to address the RO's efforts to comply with those provisions with respect to the issue currently on appeal. Turning to the issue at hand, the Veteran has contested a June 2011 finding that he is incompetent for the purpose of direct receipt of his VA compensation benefits. To that end, 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. See 38 C.F.R. § 3.353(a). A decision as to incompetency may be made by the RO, subject to appeal to the Board. 38 C.F.R. § 3.353(b). 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 on 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. Importantly, there is a presumption in favor of competency. 38 C.F.R. § 3.353(c). 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. Historically, the Veteran has been in receipt of 100 percent VA compensation benefits since 2008 due to bipolar disorder with psychotic symptoms. The Veteran's VA provider noted in January 2010 that the Veteran was not competent to handle his own funds. In support of that conclusion, the provider explained that the Veteran had repeatedly demonstrated irresponsible and self-destructive behavior, as well as a lack of judgment. It was further noted that the Veteran's capability was impaired by ongoing substance abuse. Based upon this information, the RO issued a rating decision in January 2010 proposing a finding of incompetency. Thereafter, statements were received from the Veteran's mother and father indicating that the Veteran was, in fact, competent to handle his VA compensation benefits. In statements authored in February 2010, they indicated that the Veteran's psychiatric medication was working, and that his level of responsibility had increased. The Veteran also submitted a statement in February 2010 noting that he was competent to handle his own funds. In April 2010, the RO issued a rating decision finding the Veteran competent to handle disbursement of funds. That rating relied upon the lay statements above, as well as an October 2008 VA examination report which found the Veteran competent, noting that he was aware of his bills and finances, and that he was competent to manage his VA benefits. In a February 2011 correspondence, the Veteran's VA provider indicated that the Veteran had traveled to Bulgaria, used drugs, lived in the street, requested repatriation, and was rescued. This was not the first time that such an incident took place. It was also noted that the Veteran's mother presented copies of plane tickets involved in this effort. She noted that the Veteran was argumentative and difficult to live with, and that his father was no longer involved in the Veteran's care or financial affairs. The provider stated that the Veteran's adherence to VA treatment was intermittent, and that he had not received his medication on a regular basis. It was further noted that the Veteran was severely impaired, with impulsivity, substance abuse problems, and delusional thinking interacting to produce a profound incapacity to make judgments in his own best interest. His VA income, per the examiner, increased the risks to his safety. The RO again proposed incompetency in a March 2011 rating decision. In June 2011, another rating decision found that the Veteran was incompetent to handle the disbursement of VA benefits. The February 2011 statement was cited by the RO in support for its decision. The Veteran filed a notice of disagreement in August 2011, arguing that he was, in fact, competent to manage his VA benefits. He admitted to recklessness in the past, but stated that he was no longer delusional and that he was drug free. In conjunction with this issue, the Veteran was afforded a VA examination in November 2011 specifically to address the issue of competency. The Board notes that the examination report was not authored by the VA provider who submitted multiple letters in favor of incompetency. Following an in-depth interview, and despite the Veteran's strong assurances that he was capable of managing his VA benefits, the examiner found that the Veteran's fiduciary should be continued. Most pertinently, she noted that the Veteran's past use of funds for inappropriate purposes, to include substance abuse and international travel, as well as a recent hospitalization, pointed to a finding of incompetency. The Veteran admitted to using his benefits inappropriately in the past, but he asserted that his drug problem was under control. However, the examiner pointed to a VA outpatient report, authored on November 2, 2011, in which the Veteran's mother was concerned that he was spending his money on drugs and alcohol. It was further noted that the Veteran may use prescription drugs beyond the proper dosage. The outpatient report indicated that the Veteran had taken trips to other countries during manic episodes when he had unrestricted access to funds (which required extensive diplomatic efforts to return to the United States). Though the Veteran contended that his symptoms were under control at the time of the interview, the examiner pointed out that the Veteran had been hospitalized for his disability over the summer. When asked about the details of his financial obligations, the Veteran objected to discussing the subject at length because he believed that he should be treated as an adult, and that he should not be required to account for his financial decisions. While the Veteran was cooperative during the interview and answered all questions appropriately, the examiner nonetheless determined that he was not competent to handle his VA disbursement at that time. The Veteran was next provided a VA examination in October 2012 by yet a different VA examiner. Following a psychiatric interview, the examiner found that the Veteran was not competent to handle his VA benefits. In support of that statement, she indicated that the Veteran had significant problems with calculations on a March 2012 neuropsychiatric screen. He seemed unaware of his basic necessities, and he was not able to prioritize what his needs were. As such, he would likely not be able to decide what to pay for and how to spend his money. He was unaware of how to manage money through the bank. He showed neither awareness of how to prioritize expenses, nor the ability to budget his expenses. He required assistance with meeting his financial obligations. He was also at risk for giving away or spending large amount of money for inappropriate things due to his severely-impaired judgment. Overall, she found that the Veteran did not have the mental capacity to reasonably meet his financial needs, and that he did not have the awareness to live independently. He lacked insight into the severity of his impairment, and his judgment was severely impaired. The Veteran was unable to work and demonstrated no insight as to why he was unable to do so. He was not participating in any instrumental activities of daily living, and he required supervision over basic activities. Specifically, his mother needed to remind him to take a shower, get dressed, and to take care of his hygiene. Even so, the Veteran was resistant to supervision. During the interview, his affect was blunted, his mood was dysphoric, and his insight and judgment were impaired. Despite the presumption in favor of a finding of competency, and after considering the totality of the evidence, the Board finds that the record supports the finding of incompetency in this case. While the Board acknowledges that the Veteran has reported a decrease in symptomatology and drug use, three different VA psychiatric providers have determined that he is currently incapable of handling his VA benefits. Each provider noted the Veteran's history of frequent hospitalization, his pervasive drug use, and his inability to make decisions in his best interest. Specifically, the examiners of record found that, when he had unfettered access to his VA funds, he spent those funds inappropriately (to include the purchase of drugs as well as international travel to, again, procure drugs). As such, these providers found that it would be irresponsible to allow the Veteran to manage his own affairs. The Board agrees. The Board also notes that, aside from the Veteran's own statements, there is no other evidence of record that weighs in favor of a finding of competency, with the exception of a single letter dated in March 2014. To this point, the Board notes that a hand-written document in the file, with a header of "University of Pennsylvania hospital [sic]," also handwritten, indicates that the Veteran is more than capable of handling his own financial affairs and maintaining his own money. It noted that, "I have evaluated [the Veteran] through a series of psychological test [sic], and psychological evaluations. [The Veteran] once used drugs but is now Sober [sic] and Fully Functional [sic] adult member of society. I am [provider name] and I say that [the Veteran] is competent and able to handle his own finances." After an internet search, the Board was unable to confirm that such individual had ever worked for the University of Pennsylvania Hospital. And, judging from the numerous grammatical and typographical errors, it would appear that either the Veteran or a cohort fabricated this notice. Moreover, the author of the letter, if it is in fact not the Veteran himself, gave no indication of his professional experience which would enable him to evaluate the Veteran. Likewise, while the number that was listed was a University of Pennsylvania exchange, the document was not sent from such a facility, as the fax heading is from outside the university. Finally, as noted, the fact that the document was not on University of Pennsylvania Hospital stationary, or any official document, but rather was simply captioned as being from "The University of Pennsylvania Hospital" leaves the Board with little belief that such a document is authentic. Regardless, even if it was a legitimate opinion, it lacked any rationale for the conclusions asserted, and its findings appear to be so significantly at odds with the multiple VA examiners' opinions that the Board finds that it ultimately carries little probative weight. Certainly, this document alone does not cause the Board to waiver from the conclusion that the Veteran clearly and convincingly is not competent to handle VA funds. As to the Veteran's assertions that he is competent to handle his own funds, to include the statement that a VA provider had recently deemed him competent in this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Here, the Board has determined that the Veteran's statements in support of his claims are neither competent nor credible. To the first point, the Board points out that the Veteran's severe psychiatric symptomatology has consistently manifested with poor judgment and deception. Further, the Veteran's documented substance abuse issues render his ability to declare himself competent highly suspect. As to credibility, the Veteran's drive to manage his own funds, per multiple providers of record, is likely motivated by his desire to procure recreational drugs, to travel out of the country, or both. Moreover, these statements are distinctly contradicted by several medical professionals of record, as well as statements from his mother and father. As such, the Board affords little probative value to the Veteran's assertions. In sum, the probative evidence of record does not establish that the Veteran is competent to handle the disbursement of his VA benefits. The medical evidence in support of that determination is clear, convincing, and leaves no doubt as to the Veteran's incompetency. It was noted that the Veteran's disability was profound, and that direct access to his VA benefits was a risk to his safety. Such determination is based upon all evidence of record, and there is a consistent relationship between the Veteran's 100 percent disability rating for a bipolar disorder and this finding. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is therefore against the Veteran's claim, and as such he is not deemed competent for VA purposes. ORDER The Veteran is not mentally competent to handle disbursement of funds for Department of Veterans Affairs benefits purposes; the appeal is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs