Citation Nr: 18149557 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-30 896A DATE: November 9, 2018 ORDER The Veteran is not competent to handle disbursement of Department of Veterans Affairs (VA) funds. REMANDED Entitlement to an increased disability rating in excess of 40 percent for midthoracic degenerative joint disease, with associated muscle strain, anterior compression deformity, and spondylosis deformans of the lumbar spine (back disorder) is remanded. Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance of another person or by reason of being housebound is remanded. 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 February 1985 to February 1988. This matter came before the Board of Veterans’ Appeals (Board) on appeal from January and March 2015 rating decisions of the VA Regional Office (RO) in Manila, the Republic of the Philippines. The Veteran testified from Manila, the Republic of the Philippines, at a February 2016 Travel Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. 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. As the instant matter remands the issues of an increased disability rating for the service connected back disorder and entitlement to SMC benefits, no further discussion of VA’s duties to notify and assist is necessary as to those issues. 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 (2017). 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 competency appeal. Although the VCAA does not apply to the competency issue on 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. 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). Here, 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 March 2014, the Veteran submitted a statement to VA requesting that his wife be appointed as his legal guardian. The Veteran advanced being unable to handle personal financial matters due to worsening disabilities. Along with the March 2014 statement, the Veteran submitted a December 2013 Physician’s/Medical Officer’s Statement of Patient’s Capability to Manage Benefits, which had been prepared for the Social Security Administration (SSA). Per the SSA form, a physician opined that the Veteran was not capable of managing or directing the management of benefits in his own best interest. In support of this opinion, the physician noted both the Veteran’s physical disabilities and the fact that the Veteran was beginning to manifest Alzheimer’s disease. Further, the physician opined that the Veteran would not likely be able to manage personal funds in the future due to the expectation that the disabilities would progressively worsen. Per an April 2014 lay statement, the Veteran’s wife conveyed that, while she thought the Veteran was mentally fit, the Veteran was displaying short term memory loss. Specifically, when the Veteran and wife would discuss financial matters, the Veteran would forget the entire conversation within an hour. The Veteran received a VA examination in April 2014. Per the examination report, the Veteran was experiencing severe memory loss. At the conclusion of the examination the VA examiner opined that the Veteran was not capable of managing his financial affairs. In support of this opinion, the VA examiner noted that the Veteran did not know the amount of his benefit payment, did not prudently handle the payments he received, and did not know the amount of his monthly bills. Further, the VA examiner reported that the Veteran’s wife was currently managing the Veteran’s finances due to his forgetfulness. In a November 2014 statement, the Veteran argued that he is not mentally incompetent. Rather, the Veteran only wanted his wife to be made legal guardian because of the fact he could not physically handle the management of funds. For example, the Veteran being unable to physically leave the house to visit the bank due to orthopedic disability symptoms. However, the Veteran did admit to having short term memory loss in the lay statement. The Veteran submitted a substantive appeal, via VA Form 9, in August 2015. Per the substantive appeal, the Veteran advanced being mentally competent as he still knew the difference between right and wrong. Further, the Veteran discussed how he wanted to be found competent so his gun ownership rights could be restored. A hearing before the Board occurred in February 2016. Per the hearing transcript, when asked about the competency issue, the Veteran spent the majority of his time discussing his desire for restoration of gun ownership rights. 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. The Board is sympathetic to the Veteran’s argument that his difficulty managing funds is due to physical, and not mental, deficiencies. However, the evidence of record plainly reflects that the Veteran is not competent to handle disbursement of VA funds due to both physical and mental deficiencies. Specifically, a SSA examiner in December 2013 and a VA examiner in April 2014 both found that the Veteran was incapable of managing personal financial affairs. The VA examiner specifically found that the Veteran’s inability to manage personal financial affairs was related, at least in part, to the Veteran’s severe memory loss. In various lay statements throughout the course of this appeal, both the Veteran and his spouse have acknowledged the Veteran’s short term memory problems. For these reasons, the Board finds that the Veteran is not competent to handle disbursement of VA funds. 38 C.F.R. § 3.353. REASONS FOR REMAND 1. Increased Disability Rating for Back Disorder 2. Entitlement to SMC A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. The adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Veteran last received a VA spinal disorders examination in February 2015; at that time, the examiner observed that the Veteran was in the midst of a flare-up and, as a result, the examiner was unable to test any ranges of motion. Since that examination, the Veteran has reported additional back symptoms and he testified as to worsening of his back at the 2016 hearing. Remand is warranted for an additional examination of his service-connected back disability. The Veteran last received a VA aid and attendance/housebound examination in July 2014. In the August 2015 substantive appeal, the Veteran requested that a new VA aid and attendance/housebound examination be scheduled as symptoms of the service connected disabilities related to the SMC claim had worsened. Review of the medical evidence of record, as well as the Veteran’s testimony at the February 2016 Board videoconference hearing, conveys that remand for a new VA aid and attendance/housebound examination is warranted. Further, the issue of entitlement to SMC is intertwined with the evaluation of his back disability. The aforementioned issues are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the service connected disabilities. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disabilities, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s service connected disabilities, not already of record, for the period from February 2015. 3. Schedule the appropriate VA examinations. The relevant documents in the record should be made available to the examiners, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. Back Disorder 4. The VA examiner should report all orthopedic and neurologic symptoms associated with the Veteran’s service-connected back disorder. The severity of the symptoms should be reported. Conduct any indicated diagnostic tests that are deemed necessary for an accurate assessment, to include providing the range of motion of the Veteran’s lumbar spine and commenting on the degree of functional loss due to such factors as pain on motion, weakened movement, premature or excess fatigability, diminished endurance, or incoordination. The examiner should report (in degrees) the point at which pain is objectively recorded. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been done and reflect the results of the testing. If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so. Aid and Attendance/Housebound Provide the Veteran with a VA aid and attendance and housebound examination in accordance with VA rating criteria. At the conclusion of the examination, the VA examiner should opine as to whether the Veteran’s service connected disabilities alone have rendered the Veteran permanently bedridden, so helpless as to be in need of regular aid and attendance, and/or permanently housebound. 5. Then, readjudicate the issues. If any benefit sought on appeal remains denied, the Veteran and representative (if any) should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel