Citation Nr: 19140331 Decision Date: 05/23/19 Archive Date: 05/23/19 DOCKET NO. 18-08 941 DATE: May 23, 2019 ORDER The appellant is competent to handle disbursement of the Department of Veterans Affairs (VA) funds. FINDING OF FACT The appellant currently has the mental capacity to contract or manage personal affairs, including the disbursement of funds, without limitation. CONCLUSION OF LAW The appellant is 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 had active service in the U.S. Air Force from September 1955 to September 1971. He died in October 2016. The appellant is the Veteran’s surviving spouse. This matter is on appeal from a June 2017 rating decision. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Furthermore, whenever it is proposed to make an incompetency determination, the beneficiary is to be notified of the proposed action and of the right to a hearing. 38 C.F.R. § 3.353(e). In March 2017, the RO issued a proposed finding of incompetency, explained VA's decision to declare incompetency and the process for challenging this decision, and provided information about being permanently prevented from purchasing or redeeming a firearm based upon this determination. The RO also advised the appellant that she may request a personal hearing to present evidence or argument on her behalf. Regarding the duty to assist, all relevant documentation, including VA treatment records, has been secured, and all relevant facts have been developed. There remains no question as to the substantial completeness of the record as to the issue of the appellant's competency to handle disbursement of VA funds. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Whether the Appellant Is Competent 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. § 3.353c). 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). After a review of all the evidence of record, the Board finds that it has not been established by clear and convincing evidence that the appellant lacks the mental capacity to contract or manage personal affairs, including the disbursement of funds, without limitation. In this case, the appellant has multiple medical conditions, including a cognitive deficit with memory loss. On the February 2017 examination report for housebound status or permanent need for regular aid and attendance, which was submitted by the attorney in support of the appeal for dependency and indemnity compensation benefits, the private physician wrote that the appellant has gait imbalance, weakness, a memory deficit, transient ischemic attack residuals, and a low back disability. The February 2017 private physician considered the appellant’s medical conditions and then opined, in pertinent part, that the appellant required medication management due to a memory deficit and was unable to manage her own financial affairs due to cognitive issues. Subsequently, in July 2017, the appellant’s daughter wrote that the appellant was now competent to manage her financial affairs and explained that she had witnessed the appellant currently being able to manage her finances in all aspects, including successfully paying bills on time. The appellant’s daughter added that appointing a fiduciary to manage the appellant’s account was unnecessary. Because the appellant’s daughter is competent to report that she has witnessed the appellant pay her bills on time and is now able to manage her finances, and there is no evidence to suggest that her account is not credible, her statement regarding the appellant’s ability to manage her own finances is of significant probative value. In consideration of the foregoing, and considering the presumption in favor of competency, the Board finds that the evidence currently of record does not establish incompetency by clear and convincing evidence. The Board further finds that the appellant is competent to handle disbursement of VA funds. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.353. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.