Citation Nr: 18146880 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 11-23 413 DATE: November 1, 2018 REMANDED ISSUE The issue of whether the Veteran is competent for the purpose of direct receipt of Department of Veterans Affairs (VA) compensation benefits is remanded. The Veteran served on active duty from September 1977 to July 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in December 2016. The issue of whether the Veteran is competent for the purpose of direct receipt of VA compensation benefits is remanded. In December 2017, the Board remanded this matter to obtain additional medical records and a clarifying medical opinion as to whether the Veteran is competent. The Board found a May 2017 VA examiner’s opinion appeared to hinge on the Veteran’s specific knowledge of her expenses and spending, rather than her mental capacity and competency. Thus, the Board asked the VA examiner to address whether the Veteran has “the mental (or cognitive) ability to understand the nature and effects of one’s acts.” Private medical records were received in April 2018 showing that between March 2017 and May 2017, the Veteran had sought inpatient substance abuse treatment because she had started using cocaine again and spent a large sum of money in a short period of time on illegal drugs. However, these treatment records also show that the Veteran sought treatment on her own and that although she spent a large sum of money in a short period of time, she paid off all the money she owed and at that point had no housing or financial stress. During her time in treatment, she maintained negative urine screens. It was noted at discharge that she had a relapse prevention plan and followed recommendations. A July 2017 VA medical record notes the Veteran’s report of having used cocaine at least one time after her discharge from inpatient substance abuse treatment. Her more recent medical records are sparse and do not provide any information as to her current condition. In a June 2018 addendum medical report, a VA examiner opined that the Veteran is not competent because she does not have ability to understand the nature and effects of her financial spending habits on her ability to meet her financial obligations and sustain her basic human needs. Although the VA examiner opined that the Veteran has been unable to manage her affairs or understand the nature and consequences of her actions during periods of sobriety in addition to periods of active substance use, the evidence relied upon by the examiner to support this conclusion largely includes the findings from a 2006 VA neuropsychological examination (conducted while the Veteran was still actively using illegal drugs), as well as the February 2010 statements of the Veteran’s fiduciary at the time concerning her spending habits, and the conclusions of the 2010 VA examiner (which were also largely based on the lay statements of the Veteran’s fiduciary). It is noted that the Veteran began receiving her funds directly as part of a supervised direct pay in December 2010. At the December 2016 hearing, she testified that she continued to receive her VA benefits directly, under supervision. Additionally, the June 2018 VA examiner relied on an adult assessment completed on April 24, 2018, at a substance abuse rehabilitation center. The examiner concluded that this assessment indicates that the Veteran has “most recent[ly] been in a period of active substance use and has admitted to gross mismanagement of her financial resources.” The Board notes, however, that there is no assessment of record from April 2018, and that although the March 2017 private rehabilitation records do indicate that the Veteran had been in an active period of substance use, she noted that she was not in financial distress at that time. It is unclear whether the Veteran is still in a period of active substance use. The evidence of record indicates that when the Veteran is actively using cocaine or other illegal substances, she does not have the mental or cognitive ability to understand the nature of her acts as far as her finances are concerned. This conclusion is supported by the February 2010 letters provided by her payee VA addressing her past spending habits and inability to manage her funds, as well as the VA medical records, examination reports, and medical opinions. Even the doctor who evaluated the Veteran’s neurocognitive capacity in January 2010, and who found that she did at that time have the mental capacity to manage her financial affairs, observed that the Veteran’s improved neurocognitive functions noted during the evaluation “most likely relate to her improved mood and continued drug abstinence.” However, as the record before the Board is unclear as to whether the Veteran is currently using illegal drugs, and the June 2018 VA examiner’s opinion was based at least in part on the mistaken impression that the Veteran was recently (in April 2018) treated for active substance use, the Board finds that remand is warranted for a new VA examination and medical opinion. The matter is REMANDED for the following action: 1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records she would like considered in connection with her appeal. 2. Arrange for the Veteran to undergo a VA examination by the appropriate clinician to ascertain whether she has the mental capacity to contract or to manage her affairs, including the disbursement of funds without limitation. The record must be made available to the examiner for review and a review of the entire claims file must be noted on the examination report. The examiner is informed that competency is a legal term, defined as “duly qualified: having sufficient capacity, ability, or authority [Black’s Law Dictionary]. Mental capacity is a functional term that may be defined as: the ‘mental (or cognitive) ability to understand the nature and effects of one’s acts.” The examiner should provide a complete rationale for all conclusions reached. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should state why that is the case. While the entire claims file must be reviewed, the examiner’s attention is directed to the Veteran’s December 2016 testimony, the buddy statements of record, the payee, S. F.’s, February 2010 letters, and the VA examinations of record. MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel