Citation Nr: 18141227 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 15-03 370 DATE: October 10, 2018 ORDER The Veteran is not competent to handle disbursement of Department of Veterans Affairs (VA) funds. 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 It is shown by clear and convincing evidence that the Veteran is not competent to handle disbursement of VA funds. 38 U.S.C. §§ 5103, 5103A, 5107, 5502 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.353 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from August 1996 to January 1997, and from May 1997 to April 2003. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the VA Regional Office (RO) in Fort Harrison, Montana, which continued the finding of incompetency first established in August 2006. The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA’s duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. For purposes of VA benefits, “claimant” means any individual applying for, or submitting a claim for, any benefit under Chapter 51 of Title 38 of the United States Code. 38 U.S.C. § 5100. Thus, VA’s duties to notify and to assist, as set forth in the VCAA, are not for consideration with respect to competency determinations, as an individual seeking to restore competency is not seeking benefits under Chapter 51, but is instead seeking a decision regarding how the benefits will be distributed under Chapter 55. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Accordingly, the VCAA is not applicable to the Veteran’s appeal. Although the VCAA does not apply to the instant appeal, there are nevertheless due process requirements concerning determinations of incompetency. See 38 C.F.R. § 3.353(e). In general, when VA proposes to make an incompetency determination, the beneficiary must be notified of the proposed action and of the right to a hearing as set forth in 38 C.F.R. § 3.103. See id. If a hearing is requested, it must be held prior to a rating decision of incompetency. Id. 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. Id. Review of the record reflects that the due process requirements have been met in the instant matter. The Board notes that in a May 2014 statement the Veteran advanced not receiving a copy of the May 2014 incompetency determination from the RO; however, the Veteran did convey receiving a copy from the representative. In a September 2018 informal hearing presentation (IHP) the Veteran’s representative asked that, prior to finding the Veteran incompetent, the Board remand the matter to “investigate all pertinent allegations contained within the Veteran’s correspondence, including an investigation of the current fiduciary.” Specifically, the IHP referred to the allegations found within the Veteran’s January 2015 lay statement. Having reviewed the Veteran’s January 2015 statement, discussed below, the Board finds no credible allegations within the statement that warrant remand for an investigation. The allegations are consistent with the diagnosed schizophrenia, such as the claim that Bill Gates and Microsoft had been stealing from the Veteran’s bank account. For these reasons, the Board does not find remand warranted in the instant matter. Competency to Handle Disbursement of VA Funds 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). 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. 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. 38 C.F.R. § 3.353(c). Moreover, there is a presumption in favor of competency, and where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency. 38 C.F.R. §§ 3.102, 3.353(d). In this case, the Veteran asserts being competent to handle VA disbursement of funds. After having reviewed all the evidence of record, lay and medical, the Board finds that the Veteran lacks the mental capacity to contract or manage personal affairs, including the disbursement of funds, without limitation. In support of the competency claim, the Veteran submitted a September 2013 private competency opinion. Per the opinion report, a family nurse practitioner stated that the Veteran appeared to be of sound mind and body and capable of handling his own affairs. The nurse noted that the Veteran’s mental health was stable at that time. While the Board has given focused consideration to this positive competency opinion, the Board finds it to be outweighed by the other evidence of record. The Veteran received a VA mental health examination in March 2014. Contrary to the report of findings of the nurse in September 2013, the VA psychologist found that the Veteran was displaying a number of severe psychological symptoms related to the service connected schizophrenia, to include illogical speech, impaired judgement, gross impairment in thought process, an inability to establish and maintain effective relationships, and persistent delusions or hallucinations. It was also noted that the Veteran refused to take prescribed antipsychotic medications, and that the Veteran had threatened the assigned trustee in the past to the point where the authorities had to be summoned. At the conclusion of the examination in March 2014, the VA psychologist opined that the Veteran was not capable of managing financial affairs. Specifically, the VA psychologist found that the Veteran’s judgment was so impaired by delusional thinking that the Veteran could not make rational decisions with his own money. For instance, the Veteran had recently taken out a very high interest loan from a predatory lender in order to purchase a $17,000 computer to “self-study” graphic design. The Veteran was unable to explain to the VA psychologist the type of computer purchased or the parameters of the self-study program. Further, the VA psychologist explained that two thirds of the Veteran’s discretionary spending goes towards paying off debt acquired from “questionable purchases made for almost certainly delusional aims.” For these reasons, the VA psychologist opined that the Veteran was not capable of managing personal financial affairs and should remain on protected pay status through supervision of funds. The Board finds that the other evidence of record is more consistent with the findings and opinion of the VA psychologist. Per an October 2012 VA treatment record, the Veteran admitted to having impulse control problems concerning spending, and there were times when he would enter a state in which he was “quasi-unaware of what he was doing.” The Veteran also told a VA doctor that he would soon be testifying about global warming, which appears to be part of the Veteran’s delusional thinking. A November 2014 VA treatment record reflects that the Veteran was not taking any medications to treat the service connected schizophrenia. In January 2015 the Veteran submitted a statement in support of a finding of competency. Contrary to the Veteran’s intentions, the Board finds the January 2015 statement only strengthens the Board’s finding that the Veteran is not competent to manage VA funds. Per the statement, the Veteran appears to deny having any psychiatric disabilities, calling any such diagnosis a fabrication, and attributes all symptomatology over the years to a spinal injury incurred in combat while stationed in Germany from 1997 to 1999. The Veteran advances that records of this combat injury were removed from the service records. Additional claims made by the Veteran include that in 2003 Bill Gates and Microsoft were caught stealing from the Veteran’s bank account and were charged with “antitrust.” Upon separating from service, the Veteran was referred to a private treatment provider that tried to get the Veteran to take the drug Crystal Meth. From 2007 to 2010 the Veteran advanced being arrested and institutionalized 13 times. While institutionalized the Veteran was interrogated by a “shrink,” who would demand that the Veteran take drugs. The Veteran also expressed concern that the government would be coming to take his car and couch, and to force him to take drugs. Finally, the Veteran noted that, despite all this, he has continued to cooperate with the government in testifying as an expert in federal hearings. No specific federal hearings, including the topic of testimony, were identified. After a review of all the evidence of record, the Board finds that the evidence is clear and convincing that the Veteran lacks the mental capacity to contract or manage personal affairs, including the disbursement of funds, without limitation. A VA psychologist in March 2014 opined that the Veteran requires a fiduciary to manage finances due to significant delusional thinking that has resulted in the Veteran making a number of unwise financial decisions. This opinion is supported by the medical evidence of record and the Veteran’s own delusional lay statements. While VA did receive a private opinion from a family nurse practitioner that the Veteran appeared to be capable of handling personal financial affairs, such an opinion was based upon an unsupported finding that the Veteran was in sound mind at that time of the opinion. The Board finds the other evidence of record clearly and convincingly outweighs the findings of the family nurse practitioner in September 2013. For these reasons, the Board finds that the Veteran is not competent to handle disbursement of VA funds. 38 C.F.R. § 3.353. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel