Citation Nr: 20054450 Decision Date: 08/17/20 Archive Date: 08/17/20 DOCKET NO. 20-23 024 DATE: August 17, 2020 ORDER Entitlement to restoration 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, without limitation. CONCLUSION OF LAW The criteria for restoration of competency, for the purposes of handling the disbursement of funds associated with the payment of VA benefits, have not been met. 38 U.S.C. §§ 5107, 5502; 38 C.F.R. §§ 3.102, 3.353. REASONS AND BASES FOR FINDING AND CONCLUSION 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). Rating agencies have sole authority to make official determinations of competency and incompetency for purposes of: insurance (38 U.S.C. § 1922), and, subject to 38 C.F.R. § 13.56 of this chapter, disbursement of benefits. Such determinations are final and binding on field stations for these purposes. 38 C.F.R. § 3.353 (b); see also, 38 C.F.R. §§ 13.55, 13.56, 13.57 (outlining the regulations pertaining to direct payment and the appointment of fiduciaries). 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. Considerations of medical opinions will be in accordance with the principles in paragraph (a) of this section. 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. 38 C.F.R. § 3.353 (c). 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. 38 C.F.R. § 3.353 (d); see also, 38 C.F.R. § 3.102 (reiterating VA’s long-standing policy to resolve all doubt in favor of the Veteran). Whenever it is proposed to make an incompetency determination, the beneficiary will be notified of the proposed action and of the right to a hearing as provided in 38 C.F.R. § 3.103. Such notice is not necessary if the beneficiary has been declared incompetent by a court of competent jurisdiction or if a guardian has been appointed for the beneficiary based upon a court finding of incompetency. If a hearing is requested, it must be held prior to a rating decision of incompetency. 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. 38 C.F.R. § 3.353 (e). A July 2007 rating decision granted service connection for schizophrenia and assigned a 100 percent rating. In August 2016, a VA nurse indicated that the Veteran was incompetent to handle his finances or other basic needs. The Veteran’s VA treatment records reflected treatment for his paranoid schizophrenia and showed that he was regularly receiving antipsychotic injections for management of the disease. Thereafter, a February 2017 rating decision proposed a finding of incompetency. A March 2018 rating decision determined that the Veteran was not competent to handle disbursement of funds. The Veteran appealed, asserting that he is able to manage his funds and does not have financial mismanagement issues. However, subsequent VA treatment records dated in November 2019 showed that the Veteran discussed with his psychiatrist his desire for the psychiatrist to author a letter supporting his ability to resume management of his finances. However, the psychiatrist explained that the Veteran had a history of financial decisions and purchases that were not in his best interest. The Veteran was told that the psychiatrist had been made aware that he recently obtained a credit card and maxed out the credit limit rapidly. As a result, the psychiatrist could not write a letter in favor of his return of control of management of his finances to him. In June 2020, the Veteran was afforded a VA mental status examination. The examiner concluded that the Veteran’s schizophrenia resulted in total occupational and social impairment. The examiner noted that the Veteran had been receiving “wrap around service” from the VA Medical Center. A social worker visited him weekly to biweekly, and he was receiving his long acting injectable antipsychotic every two weeks in his home. The examiner noted that the Veteran was largely asocial and cited limited social integration with minimal interpersonal interactions or leisure activities. The Veteran did not have any new educational pursuits or work experiences. He was not currently working. His current symptoms were as follows: anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, circumstantial or stereotyped speech, and impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation, persistent delusions or hallucinations, and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. On examination, the Veteran was cooperative and personable, alert, attention was within normal limits, he was oriented, his mood was euthymic, his affect was full, his speech was normal, he did not have delusions, his judgment was grossly intact, his memory was adequate, his insight was adequate, and his intellectual functioning was in the average range. The examiner opined that the Veteran was incompetent. The examiner stated that the Veteran’s schizophrenia had significantly impaired his cognitive abilities and decisional capacities. Even though the Veteran had been compliant with an effective antipsychotic medication regimen, he had still recently demonstrated behavior that is concerning for his financial well-being (maxed out a credit card). The examiner indicated that the Veteran suffered from a level of impulsivity and low financial literacy that continued to make him unable to manage his own funds. The consequences of these impairments in financial capacity are often devastating. The problems of malnutrition, homelessness, and even premature death have been attributed to the inability or unwillingness to use funds to provide for basic needs. The Board attaches significant probative value to the opinions of the VA nurse, the VA psychiatrist, and the medical opinion provided with the recent medical status examination. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board has considered the Veteran’s assertions. However, as a lay person, the Veteran does not have the training or expertise in medical matters and the matter at hand involves a medical determination that is too complex to be made based on lay observation alone. See generally Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The probative medical evidence including the recent VA medical opinion does not show that the Veteran was found to be competent to manage his VA funds. Instead, the evidence indicates that the Veteran has active psychiatric symptoms which are numerous. Furthermore, the examiners have indicated that the Veteran does not possess adequate capacity to manage his funds. Overall, the most credible and probative evidence of record does not establish that the Veteran has regained competency to handle funds. Rather, the most probative evidence establish that the Veteran continues to not be competent to handle funds. Consequently, the finding of incompetency is still warranted. The Board finds that this medical evidence is more probative than the Veteran’s statements. Further, there is no convincing medical or other evidence to refute the medical evidence of record showing that the Veteran is not competent to manage his financial affairs. (Continued on the next page)   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. Here, upon review of all the evidence of record, the Board finds that the Veteran is not competent for the purpose of managing the disbursement of his VA benefit. In this case, the presumption of competency is rebutted by the most probative evidence. This evidence is clear and convincing. 38 C.F.R. § 3.353 (d); see also 38 C.F.R. § 3.102. The competent and probative evidence confirms that the Veteran is incapable of managing his finances. In reaching this conclusion, the Board finds that the clear and convincing evidence leaves no doubt to be resolved in this matter. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Connolly, 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.