Citation Nr: 20000041 Decision Date: 01/02/20 Archive Date: 01/02/20 DOCKET NO. 17-48 048A DATE: January 2, 2020 REMANDED Whether the removal of the Veteran’s mother, B.H, as his fiduciary to manage the Department of Veterans Affairs (VA) benefits and appoint P.L. instead, was proper, is remanded. Entitlement to restoration of competency, for the purposes of handling the disbursement of funds associated with the payment of VA compensation benefits is remanded. REASONS FOR REMAND In a March 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for schizophrenia and assigned a 100 percent rating. Thereafter, in a June 2015 rating decision, the AOJ found that the Veteran was incompetent for VA purposes. The AOJ appointed B.H. as the Veteran’s fiduciary for his VA compensation benefits. However, the AOJ later removed her due to a finding of misuse of funds and appointed P.L. as the fiduciary. The appeal arose from the Veteran’s disagreement with the removal of B.H, as his fiduciary and appointment of P.L. instead. However, on several occasions, the Veteran indicated that he was able to manage his own funds. Thus, the matter of entitlement to restoration of competency, for the purposes of handling the disbursement of funds associated with the payment of VA compensation benefits has been raised and this matter needs to be adjudicated prior to the fiduciary matter since this matter is moot if the Veteran does not require a fiduciary. The Board notes that the record reflects that a physician recently indicated in September 2018 that the Veteran was not competent; however, no specific mental health findings or rationale were provided. 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 the capacity to manage 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, VA 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 should be based upon all evidence of record, and there should be a consistent relationship between the percentage of disability, the facts relating to commitment or hospitalization, and the holding of incompetency. Id. The Board notes that there is a presumption in favor of competency, and where reasonable doubt arises regarding a beneficiary’s mental capacity to contract or manage his 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); see also 38 C.F.R. § 3.102. The matters are REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to address the Veteran’s competency to manage his VA benefits payments. Based on the results of the examination and the review of the Veteran’s history, the examiner should opine as to whether the Veteran is competent to handle disbursement of VA funds. 2. The Veterans Service Center Manager (VSCM) should then review the evidentiary record and determine whether additional evidence of the Veteran’s “social, economic and industrial adjustment” is required in order to determine the Veteran’s competency for VA purposes. If so, the VSCM should develop this information pursuant to 38 C.F.R. § 3.353 (b)(2). If not, the VSCM should, by memorandum to be incorporated into the record, set forth the prior participation of the VSCM, Adjudication Officer, or VSO of jurisdiction in the development of the current evidentiary record in satisfaction of the requirements of 38 C.F.R. § 3.353 (b)(2). 3. After all indicated development has been completed, the VSCM should determine whether the evidence indicates that the Veteran may be capable of administering VA funds payable to him without limitation; and, if so, refer that evidence to the rating agency with a statement of his or her findings, as set forth in 38 C.F.R. § 3.353 (b)(3). 4. If the competency issue is not resolved in the Veteran’s favor, the matter of the proper fiduciary should again be reviewed. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals J. Connolly Attorney for the Board 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.