Citation Nr: A20016632 Decision Date: 11/09/20 Archive Date: 11/09/20 DOCKET NO. 190913-32012 DATE: November 9, 2020 ORDER Entitlement to restoration of a finding of competency, for the purposes of handling the disbursement of funds associated with the payment of Department of Veterans Affairs (VA) benefits, is denied. FINDING OF FACT The Veteran lacks the mental capacity to contract or manage his own affairs, including the disbursement of VA funds. CONCLUSION OF LAW The Veteran is not competent for the purpose of receiving direct payment of his VA benefits, so that restoration of competency is not warranted. 38 U.S.C. §§ 5107, 5502; 38 C.F.R. § 3.353. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to October 1971. Entitlement to restoration of competency, for the purposes of handling the disbursement of funds associated with the payment of VA benefits. The Veteran contends the finding of incompetency was based on psychological and neurological testing that was developed for cognitive issues, but the results showed no diagnosed cognitive disorder to support the competency decision. The issue of whether or not a veteran is competent to receive direct payment of VA benefits is controlled by 38 C.F.R. § 3.353(a), which provides that 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. Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities. Determinations relative 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. See 38 C.F.R. § 3.353(c). There is a presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary’s mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency. See 38 C.F.R. § 3.353(d). The Veteran was referred for a competency determination by a VA social worker in July 2018 after the Veteran sought assistance with paying bills and getting organized at home. He reported a gradual worsening of short-term memory issues and difficulty getting organized and focused with activities around the home. A later July 2018 mental health consult documented the Veteran was having problems due to being unfocused. When pressed for details, he described himself as disorganized and unable to finish tasks. He noted he lost items such as his phone, cannot remember dates, numbers, and codes, and has difficulty writing, spelling, and making out checks to pay bills. He stated he was seen by neurology and given a diagnosis of mild cognitive impairment a few years ago. The Veteran reported having trouble making out checks and that his landlady fills out the check for his rent. He stated he would call and pay other bills over the phone, when he remembered. He stated he was forgetting more than he was remembering, and the fees were messing up his bank accounts. The Veteran went on to explain that he cannot continue to manage his finances in this way, as it was problematic. The Veteran recounted an incident where he accidently hit the life alert button, but he was unreachable because he forgot his cell phone and was at a friend's house. An ambulance was sent to his home, and his son asked his ex-spouse to check on him after he was notified. Veteran noted his cognitive issues were impacting others now. The examiner discussed the VA fiduciary program, and he agreed that he could use this assistance. An August 2018 neuropsychology consult noted the Veteran’s history was significant because he had several prior neuropsychological evaluations dating back to 2006. He was referred to the CogSMART program because of his report of increasing short-term memory difficulties and trouble with organization and focus. The examiner recommended updated neurological testing since the Veteran reported increased difficulty with activities of daily living to further assist with planning including the need for assistance. August 2018 neurological testing showed results that were consistent with the mild cognitive problems seen on his last neuropsychological examination in 2013. The psychologist noted that the Veteran had been diagnosed with mild cognitive impairment in 2013 and that he currently met the criteria for mild neurocognitive disorders. The psychologist added that the Veteran did not meet the criteria for major neurocognitive disorder, and his Parkinson’s had not progressed to dementia. In an August 2019 letter, a VA treating physician wrote that the Veteran had contacted her about VA’s finding of incompetency. The physician wrote she reviewed notes in his medical record from the previous summer that were pertinent to the unfavorable decision. She pointed to the August 14, 2018 neurological assessment which initially documented the Veteran met the criteria for a mild neurocognitive disorder, but was later assessed as having average to above average cognitive functions in most realms of testing, and no diagnosis in relation to a cognitive disorder. The physician stated that neither assessment rose to the level of incompetency, but she noted she was unable to review all the data that was used for the incompetency determination, and she is not qualified to do competency evaluations. In an August 2019 VA treatment record, which corresponds with the above-described letter, the physician documented that the Veteran stated he came to the clinic the previous summer for help with paying bills and organizing affairs at home, but he sought supportive assistance rather than an inability to make decisions. He told the examiner he did not feel his son, who is his power of attorney and fiduciary, needs to act in that role. The Veteran noted his trouble with writing checks was a result of trouble with his hands related to Parkinson’s disease, and he says he pays bills online or by phone, and he offered to show his credit score and personal financial records if needed. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding of competency. There is evidence both for and against a finding of competency; however, in July 2018, the Veteran relayed his concern about having difficulty paying his bills, to include his stating that he does not always remember to pay them, feeling like he was forgetting more than he was remembering, and telling the VA social worker that he could not continue to manage his finances in the way he had been managing them and asked for help. These statements are highly probative regarding a finding that the Veteran is not competent to handle his VA benefits, as the Veteran’s own admission is indicative of a finding of incompetence. The Board has read through the August 2019 letter written by a VA treating physician, but finds her conclusions that the facts do not establish incompetency are of lessened probative value because she did not consider all the evidence, including the Veteran’s July 2018 self-report of the level of difficulty he had keeping up with his bills. Again, what the Veteran reported to the VA social worker in July 2018 was an honest self-assessment, and the facts he reported at that time lead to the conclusion that he is not competent to manage his funds. The Board understands that subsequent testing showed a mild cognitive problem, but such finding is outweighed by the Veteran’s own perception of the difficulties he was having with his finances with examples of these difficulties. While the Veteran has explained his inability to write checks as a physical manifestation of his Parkinson’s disease, he has not submitted evidence showing he is capable of managing his finances after initially expressing an inability to do so. Although the Veteran points to a discrepancy with cognitive testing, records before and after his finding of incompetency show a mild cognitive disorder. Moreover, the initiation of competency proceedings did not occur after the August 2018 cognitive testing but, instead, began in July 2018, when he expressed an inability to manage his finances including worsening short-term memory and fees, presumably incurring late fees or possibly overpayment fees, that were negatively impacting his bank accounts. The Veteran expressed feeling like a fiduciary was needed at that time. The Board finds the Veteran’s July 2018 statements regarding his inability to manage his finances, that his cognitive issues were affecting others, and that fees were negatively impacting his accounts to be indicative of an inability to manage his affairs that supports a finding of incompetence. For these reasons, the Board finds that the preponderance of the evidence is against a finding that the Veteran is competent to contract or manage personal affairs, including the disbursement of funds, without limitation. The Veteran’s admission in July 2018 that he needed help with his finances with specific examples, which are described above, is strong evidence against a finding of competency. The Board does not find that the evidence is in equipoise for a finding of competency and, instead, finds that the preponderance of the evidence is against such finding and concludes that the Veteran is incompetent to handle the disbursement of VA funds. 38 C.F.R. § 3.353. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, Associate 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.