Citation Nr: 1802271 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-06 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether the Veteran is mentally competent to handle disbursement of funds for Department of Veterans Affairs benefit purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to August 1984. This matter is before the Board of Veterans Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2017. A copy of the hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. The Veteran has a history of substance abuse, legal problems, and non-compliance with psychiatric medication. 2. 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 not competent for the purpose of receiving direct payment of his VA benefits, so that restoration of competency is not warranted. 38 U.S.C. §§ 5107, 5502 (2012); 38 C.F.R. §§ 3.102, 3.353 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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. § 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. During the hearing, the VLJ clarified the issue, explained the concept of competency and offered to leave the file opinion for the submission of additional evidence. Such actions comply with 38 C.F.R. § 3.103. II. Competency 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)(2017). Rating agencies have sole authority to make official determinations of competency and incompetency for purposes of: insurance (38 U.S.C. 1922), and, subject to § 13.56 of this chapter, disbursement of benefits. Such determinations are final and binding on field stations for these purposes. 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 rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities. Considerations of medical opinions will be in accordance with the principles in paragraph (a) of this section. 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); see also, 38 C.F.R. § 3.102 (reiterating VA's long-standing policy to resolve all doubt in favor of the Veteran). 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 as provided in § 3.103. Such notice is not necessary if the beneficiary has been declared incompetent by a court of competent jurisdiction or if a guardian has been appointed for the beneficiary based upon a court finding of incompetency. If a hearing is requested it must be held prior to a rating decision of incompetency. Failure or refusal of the beneficiary after proper notice to request or cooperate in such a hearing will not preclude a rating decision based on the evidence of record. 38 C.F.R. § 3.353 (e). The AOJ has assigned a 100 percent evaluation for a psychiatric disorder. The award is subject to a finding of incompetency. He is located at the Colorado Mental Health Institute in Pueblo, Colorado. An August 1999 rating decision found that the Veteran is not competent to handle disbursement of fund. A November 2003 rating decision found the Veteran is not competent to handle disbursement of funds. In November 2011, the Veteran filed a request to be rated competent for his VA benefits. The Rating Decision dated March 15, 2012 denied the Veteran's request to find him to be competent to handle funds. The related VA examination that was scheduled for this issue was cancelled because the Veteran is confined to the Colorado Mental Hospital Institute at Pueblo (CMHIP) after being judged Not Guilty by Reason of Insanity, and he could not attend the examination. III. History A May 2003 Mental Status Examination from the CMHIP indicates the Veteran has a history of sexual assault on a police officer and sexual assault on a child. He has a history of being charged with failure to desist and disperse, harassment, physical assaults, several sexual assaults on minor-age females, probation violations, possession of a weapon, trespassing, larceny, insufficient funds, theft, and with being a habitual criminal. Of note, a VA examiner in June 2003, indicated that the Veteran has schizophrenia and has been a patient since 1984 for multiple admissions. The Veteran reported that he has thought that he might have been adopted and that his father might have been James Brown. The Veteran reported that he may have been born in 1958 instead of 1963. He has a past history of anti-social violent aggressive behavior. The Veteran Service Center Fiduciary Manager expressed concern in a statement prepared in July 2003, that the Veteran should not be rated competent to handle his own affairs. She indicates the Veteran has had an extensive history with the VA Denver Fiduciary section. He has previously been rated competent and has been re-rated, incompetent as he is unable to handle his own affairs. He has an extensive history of pedophilia and at times in the past has been a danger to himself and others. He also has been suicidal in the past. She opined that there is little to no information to show that the Veteran can handle his own affairs. There is some information regarding his credit cards and a loan he is paying back. She indicated that apparently he did not tell the doctor that he took out a loan for a young woman who he thought might marry him. The Veteran underwent subsequent examinations by a Board of three examiners. Two of the examining physicians recommended a reversal of competency state. One VA examiner has recommended a continuation of the incompetency rating. The VA Service Center Fiduciary Manager and the results of the most recent field examination indicated the Veteran is unable to handle VA funds in an appropriate manner. The VA Field examiner continued to state that the Veteran acts in an irresponsible way by creating debt that he cannot manage. He has used this debt to buy gifts for his family friends without thought on how he would repay the money. He was ultimately found to still be incompetent since August 23, 1999. Submissions by the Veteran show ongoing difficulty paying off credit cards and purchasing a vehicle. A July 4, 2012 letter indicates he was in receipt of "over a billion dollar check." A January 1, 2013 letter shows references to "Over 500,00,00 US Dollars", the IRS, and "the 700 Club with then founder Pat Robertson." A March 2013 psychiatric evaluation from Dr. J. C., a licensed pscyhologist, includes an interview with the Veteran and a review of his treatment records. Dr. C. noted that the Veteran's general behavior suggested the Veteran was attempting to present himself in as positive a light as possible, consistent with the purpose of the evaluation. However, this appeared to lead to his downplaying the severity of some of his past and possibly current behaviors. During the evaluation the Veteran described some beliefs that verged on delusional and that not all of them appeared to have a rational or factual basis, although there was no evidence that these beliefs significantly impaired his ability to process rationally information related to the Veteran's finances. Dr. C. went on to explain that while the Veteran demonstrated the cognitive capacity to manage his own funds, his mental stability gives cause for concern. By the Veteran's own admission, he has quit taking medications and in the past and, per information in his medical chart, this has led to decompensation. Dr. C. reviewed the evidence in the CMHIP treatment records and noted that in October 2010 the Veteran stopped taking his medication and began to experience hallucinations and exhibit disorganized behavior. Over the next year or two he was uncooperative with, and hostile to, treatment providers and refused medication. In October 2012 the Veteran agreed to court ordered medication and did not seem to be hallucinating or dissociative. His memory was observed to be good although his judgment was described as seriously impaired. In December 2012 he was described as cooperative and motivated in treatment. Dr. C. concluded that it is his professional opinion, with a reasonable degree of scientific certainty, that the Veteran, provided that he remains compliant with recommended psychiatric treatment, possesses adequate capacity to manage his own financial affairs. VA treatment records show ongoing contact in the form of telephone calls from the Veteran requesting a psychologist/psychiatrist to come to CMHIP to evaluate him to assist with regaining on his competency to handle his monetary affairs. He indicates that he is a ward of the state and wants to be released from the facility. The Veteran testified before the undersigned VLJ in August 2017. The Veteran testified that he got in the system in 1988, and was discharged from the United States Army. Thereafter he testified that he was in the system, seasonally, usually every winter time. He stated, to my dismay, I went to prison, and I didn't want to go there, of course, but as luck would have it, that's where I ended up at. He opined that he is more than capable of handling his own monetary affairs. He reported that he got back in the hospital on October 23, 2009, and that his field examiner let him handle his own finances at that time. The Veteran and his representative report that he was rated competent prior to 1988 and going to prison. The Veteran asserts on a March 2014 VA Form 9 that his strongest argument is to make gains and or progress toward a lesser security ward, he was ordered to discontinue an outside banking account. His student loans went unpaid because he thought CMHIP was his payee and that his loans were not current. He thought he was pre-approved when he purchased a car. IV. Analysis The medical opinion from Dr. C. does not show that the Veteran was found to be competent to manage his VA funds. Instead, it indicated that the Veteran's inpatient treatment records show his judgment to be impaired, that during the interview he downplayed the severity of his past and present behavior, and that he was being held at the CMHIP facility because he was found to be not guilty by reason of insanity. Dr. C. noted that the Veteran's general behavior suggested the Veteran was attempting to present himself in as positive a light as possible, consistent with the purpose of the evaluation. He opined that while the Veteran demonstrated the cognitive capacity to manage his own funds, his mental stability gives cause for concern. However, by his own admission, he has quit taking medications and in the past and, per information in his medical chart, this has led to decompensation. Consequently, the Board finds the Veteran's statements to lack credibility and therefore assigns them diminished probative weight. Furthermore, Dr. C. indicated that the Veteran possess adequate capacity to manage his funds provided he remained compliant with his medication. Dr. C. noted that the records show that the Veteran has not been able to remain compliant with his medication which is now court-ordered. Overall, the most credible and probative evidence of record does not establish that he has regained competency to handle funds. Rather, the most probative evidence, to include my observations during the hearing, establish that the Veteran is not competent to handle funds. Consequently, the finding of incompetency is still warranted. Here, the Board has considered the evidence that the Veteran has submitted showing that he was aware that some of his debts have not been timely paid. Although this shows awareness of his financial affairs, it does not show competence to manage the same, especially in light of the evidence showing that the Veteran was able to obtain credit/loans and run up debt. Further, there is no convincing medical evidence to refute the medical evidence of record showing that the Veteran is not competent to manage his financial affairs. 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. Here, upon review of all the evidence of record, the Board finds that the Veteran is not competent for the purpose of managing the disbursement of his VA benefit. In this case, the presumption of competency is rebutted by the most probative evidence. 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 confirms that the Veteran is incapable of managing his finances. The Board has considered the numerous submitted written contentions of the Veteran with regard to competency. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, the Board finds that his own medical opinion is outweighed by an interpretation of the reasons and bases provided in the March 2013 psychiatric evaluation report, in conjunction with the other contemporary evidence of record suggesting that he is not competent to manage his financial affairs. As outlined above, the Veteran has a history of substance abuse, legal problems, and non-compliance with psychiatric medication. Dr. C additionally opined that while the Veteran demonstrated the cognitive capacity to manage his own funds, the Veteran's mental stability gives cause for concern. For these reasons, 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. In reaching this conclusion, the Board finds that the clear and convincing evidence leaves no doubt. ORDER Entitlement to restoration of competency, for the purposes of handling the disbursement of funds associated with the payment of VA benefits, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs