Citation Nr: 18140718 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-12 195A DATE: ORDER Entitlement to the restoration of competency status for the purposes of handling VA benefit payments is denied. FINDING OF FACT The Veteran lacks the mental capacity to contract or manage personal affairs, including the disbursement of funds, without limitation. CONCLUSION OF LAW The Veteran is not competent to handle disbursement of VA funds. 38 U.S.C. §§ 5103, 5103A, 5107, 5502; 38 C.F.R. §§ 3.102, 3.159, 3.353. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 2006 to June 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has been found incompetent for VA benefits purposes, and asserts that competency status should be restored. Due Process Considerations 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). 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. Here, the RO issued a proposed finding of incompetence in January 2010 based on a September 2009 opinion of the Veteran’s treating mental care provider that he was not competent to handle his VA funds. The Veteran was notified of the proposed action and given an opportunity to present evidence or request a personal hearing. See January 2010 Notice Letter. The Veteran did not request a hearing. In a March 2010 rating decision, the RO adjudicated the Veteran incompetent. In a September 2010 rating decision, the finding of incompetency was confirmed. The Board finds that due process protections of 38 C.F.R. § 3.353(e) have been fulfilled. Competency For purposes of disbursement of VA benefits, rating agencies have the authority to make determinations of competency and incompetency. 38 C.F.R. § 3.353(b)(1). 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). 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). For the presumption of competency to apply, there must be reasonable doubt as to the beneficiary’s mental capacity, meaning approximate balance of positive and negative evidence. Sims v. Nicholson, 19 Vet. App. 453, 459 (2006); 38 C.F.R. § 3.102. Unless the medical evidence is clear, convincing, and leaves no doubt as to the person’s incompetency, the rating agency 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 as 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. Id. The most probative evidence medical and lay evidence of record supports a finding that the Veteran is not competent to manage his own affairs, including disbursement of funds without limitation. During the relevant period, the Veteran has been diagnosed with various psychiatric disorders, including paranoid schizophrenia, schizoaffective disorder, post-traumatic stress disorder, cannabis use disorder and alcohol use disorder (in sustained full remission). Throughout this time his psychiatric symptoms have included anxiety, depression, hypervigilance, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including in a work-like setting), persistent delusions or hallucinations, paranoid thinking, persistent danger or hurting self or others, disorganized thinking and bizarre behavior. See September 2010 and August 2014 VA Examination Reports; see also VA Medical Records; September 2009, August 2010, March 2011 Correspondence of M.B. He also has a long history of noncompliance with treatment. See September 2009 Correspondence of M.B. The Board acknowledges the Veteran’s contention that he is capable of managing his own funds, and further notes the February 2011 statement of his treating health care provider that he had been compliant with his treatment recommendations and is psychiatrically stable, and thus able to handle his own finances. However, the overwhelming evidence of record shows that this period of stability has not been persistent, and that his recurrent psychiatric symptoms, delusional episodes, and drug use cause him to be unable to manage his own affairs. Numerous medical records and statements from the Veteran’s treating providers, fiduciary and family members show that the Veteran is not competent to manage his own affairs. In a September 2009 statement, the Veteran’s treating social worker stated that the Veteran was unable to manage his funds in a responsible manner, reporting that he spends his money on gambling and marijuana. See September 2009 Correspondence of M.B. She reported that the Veteran suffered from paranoid delusions, and had a long history of noncompliance with his treatment recommendations. The Veteran’s treating psychiatrist also opined that the Veteran was not competent to handle his own funds, noting that the Veteran has been rated 100 percent for service-connected paranoid schizophrenia, and exhibited a chronic pattern of non-compliance, substance abuse, and irresponsible behavior. See September 2009 VA Psychiatry Note. VA medical records show that the Veteran was admitted for inpatient psychiatric treatment on multiple occasions, and exhibited symptoms of hallucinations, delusional and paranoid thinking, hearing voices, homicidal and suicidal ideation, and impaired judgment. See April, May, September 2010, July 2011, November 2013, December 2013, February 2015 VA Medical Records. Although the Veteran had a brief period of stabilization in February 2011, by March 2011 he was again not in compliance with his treatment or taking medication, and the social worker who had previously supported his request to handle his own affairs rescinded her letter of support. See March 2011 Correspondence of M.B. and Dr. C. In a statement received June 2011, the VA social worker stated that the Veteran’s psychiatric “episodes” were becoming increasingly worse and required longer and longer periods of time to stabilize his symptoms. The social worker further noted that even when stabilized, the Veteran would suffer break-through symptoms that included delusional thinking. The social worker observed that the Veteran required a fiduciary to manage his affairs, as well as support and assistance from his family in order to maintain independent living in the community. In an August 2011 VA mental health clinic note, his treating physician noted that the Veteran suffered from auditory hallucinations, and indicated an agreement that the Veteran was not competent to handle his VA funds, noting that the physician was not “able to request for the benefits to be reassign[ed] to the Veteran at [the] present time.” More recent evidence shows that the Veteran’s psychiatric symptoms have continued to cause him to be incompetent to handle his VA funds. Correspondence from the Veteran’s fiduciary in 2013 shows that the Veteran moved out of the country and was not able to comply with a monthly budget, often stating that he had “unforeseen” expenses. An August 2014 VA examiner observed that the Veteran suffered from persistent delusions or hallucinations and was not competent, noting that his parents help manage his finances because of his past psychotic symptoms and persistent delusions. In a June 2016 communication, the Veteran’s fiduciary at the time stated that the Veteran is sharing a home with his family after proving that he could not live alone and had a history of stealing and damaging property due to drug abuse. See June 2016 Report of Contact. In a December 2016 communication, the fiduciary reported that the Veteran has been “completely irresponsible and often incoherent” when not taking his psychiatric medication and has been unable to adhere to a budget. The fiduciary also noted the reports of the Veteran’s mother that he often steals from his family, has extensively damaged their home and his “only activity is to smoke marijuana with most of the funds he gets.” See December 2016 Email Correspondence. A January 2017 report shows that the Veteran contacted VA and “appear[ed] very unstable,” confusing a VA employee for a person with whom he served. See January 2017 Report of General Information. The Veteran’s VA medical records show that he continues to suffer from delusions, hallucinations and poor judgment. Thus, the Board finds that the Veteran is not competent to manage his or her own affairs, including disbursement of funds without limitation. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel