Citation Nr: 21061870 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-01 467 DATE: October 5, 2021 ORDER An effective date prior to February 23, 2009 for reinstatement of VA compensation benefits is denied. FINDINGS OF FACT 1. In February 2001, the RO effectuated a January 2001 Board decision, and granted a 100 percent evaluation for psychotic disorder, not otherwise specified (NOS). 2. Between April and July of 2005, the Veteran repeatedly requested that VA discontinue payment of his disability compensation benefits. 3. In August 2005, the RO effectuated the Veteran's renouncement of his VA compensation benefits, effective August 1, 2005. 4. A letter to VA from the Veteran's spouse, received in July 2008, does not fulfill the criteria for an informal claim. 5. On February 23, 2009, and no earlier, the Veteran filed a claim for reinstatement of compensation benefits. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 23, 2009 for the 100 percent disability evaluation for psychotic disorder, not otherwise specified, have not been met. 38 U.S.C. §§ 5110, 5306; 38 C.F.R. §§ 3.106, 3.158, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION In March 2019, the Veteran was afforded a hearing before the undersigned at the RO. 38 U.S.C. § 7107. In October 2019, the Board denied the claim. In a memorandum decision, dated in February 2021, the Court of Appeals for Veterans Claims reversed and remanded the Board's October 2019 decision. 1. Earlier effective date, reinstatement of benefits. The Court's February 2021 memorandum decision shows that the sole issue discussed is whether the Veteran's wife's letter to VA in July 2008 fulfills the criteria for an informal claim under 38 C.F.R. § 3.155. As the Court noted no other deficiencies in the record or the Board's October 2019 decision, and for the sake of judicial economy, the Board hereby incorporates all other facts and analysis of the vacated October 2019 Board decision by reference, except as noted. Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), vacated on other grounds sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). The administrative history of the claim was summarized in the Board's October 2019 decision and is repeated, in part, herein: In January 2001, the Board granted the Veteran's claim for service connection for an acquired psychiatric disorder. In February 2001, the RO effectuated the Board's decision, and granted a 100 percent evaluation for psychotic disorder, not otherwise specified (NOS), effective April 23, 1999. The RO determined that the Veteran was competent. In April, May, and July of 2005, the Veteran submitted signed statements to the RO in which he stated that he wanted to have his disability benefits discontinued. In his April and May 2005 statements, he reported that he was completing a work program involving construction. In his April and May 2005 letters, he reported that he was starting a new job. The April 2005 letter noted that his job would begin on May 1st. In the July 2005 letter, he stated, "My condition is greatly improved," and, "We make enough money for my family." On July 1st and 27th of 2005, the Veteran placed phone calls to the RO in which he requested that his benefits be discontinued. With regard to the second phone call, it was noted that, "He states that he no longer wants to receive any of VA funds." He stated that he had written VA three times in the past year. See reports of contact (VA Form 119s), dated July 1, 2005 and July 27, 2005. In a notice sent to the Veteran on August 19, 2005, he was notified that his benefits would be terminated effective August 1, 2005. He was told, "You may reapply for VA Compensation at any time if your service-connected disability becomes worse." On July 24, 2008, the Veteran's spouse submitted a statement in which she requested that the Veteran's benefits be reinstated, and that she be appointed his fiduciary. She stated that the Social Security Administration (SSA) had appointed her as the Veteran's "payee." The Veteran's spouse submitted a number of documents in support, to include a statement from a private physician in which the physician noted that the Veteran was under his care, and that, "He is unable to manage his own finances." On February 12, 2009, the RO sent a notice to the Veteran's spouse notifying her of what was required to make her the Veteran's fiduciary, and to reinstate the Veteran's benefits. The RO responded to the Veteran's spouse's July 2008 letter on February 12, 2009. The RO's letter was addressed solely to the Veteran's spouse, and it informed her: We have received your letter that you be made payee for your husband's VA benefits. [The Veteran] is not receiving any VA benefits at this time. We stopped his benefits in 2005 because he renounced his benefits. The applicable provisions of law and regulation s are very specific as to requirements for reinstating benefits. What We Need You To Send Us If you have been appointed guardian or conservator of the person and estate of your husband by court order, you should send us evidence of this, preferably a certified copy of the court order. If this is the case, we can probably accept the letter you sent us as an application to reinstate [the Veteran's] benefits and be payee for the benefits. If you have not been appointed guardian or conservator of the person and estate of your husband then it is necessary that he apply for reinstatement of his service-connected compensation as quickly as possible. He may do so by completing, signing, and returning the enclosed VA Form 21-4138 stating that he wants to apply for reinstatement of his service connected compensation. You may want to ask your closes Veterans Count Service Officer to help you with this clam. (all emphasis in original). On February 23, 2009, a statement in support of claim (VA Form 21-4138) was received, signed by the Veteran, in which he requested reinstatement of his VA compensation benefits. He stated, "I would like the benefits and compensation [to] be in my name." In March 2010, the RO reinstated the Veteran's compensation benefits at the 100 percent rate, with an effective date of February 23, 2009. The RO's cover letter for this decision, sent to the Veteran on March 29, 2010, indicates that the effective date for reinstatement of his benefits was March 1, 2010, but that compensation would be withheld until a competency issue was resolved. In April 2010, the RO determined that the Veteran was competent to handle disbursement of VA funds. The cover letter for this decision, dated May 5, 2010, shows that the effective date for reinstatement of the Veteran's compensation benefits was March 1, 2009. See 38 C.F.R. § 3.31. The Board's October 2019 decision stated, in part: In February 2009, the RO sent a notice to the Veteran's spouse notifying her of what was required to make her the Veteran's fiduciary, and to reinstate the Veteran's benefits. There is no record of a reply. In April 2010 it was determined that the Veteran was competent. Therefore, the Veteran's spouse is not the Veteran's fiduciary for VA purposes, her July 2008 statement cannot serve as a claim for reinstatement of the Veteran's benefits, and the Veteran is not entitled to reinstatement of VA compensation benefits prior to February 23, 2009. The Court's February 2021 decision states: Contrary to the Board's finding, the record shows that there was a response to the RO's letter. The RO's letter, which was sent on February 12, 2009, informed the [Veteran and his spouse] of the requirements for [the Veteran's spouse] to become a fiduciary and [the Veteran] to file a claim for benefits. Less than two weeks later, on February 23, 2009, [the Veteran] filed a formal claim for reinstatement of his compensation benefits. His claim for benefits is a clear response to the RO's February 12, 2009, letter informing him how to file his claim. Regulations provide that any person entitled to compensation may renounce his right to that benefit buy may not renounce less than all of the component items which together comprise the total amount of the benefit to which the person is entitled nor any fixed monetary amounts less than the full amount of entitlement. The renouncement will be in writing over the person's signature. Upon receipt of such renouncement in the Department of Veterans Affairs, payment of such benefits and the right thereto will be terminated, and such person will be denied any and all rights thereto from such filing. 38 C.F.R. § 3.106 (a). Renouncement under 38 C.F.R. § 3.106 (a) will not prevent a person from filing a new application for compensation at any future date. Such new application will be treated as an original application, and no payments will be made thereon for any period before the date such new application is received in the Department of Veterans Affairs. 38 C.F.R. § 3.106 (b). The proper effective date to be assigned following a renouncement of benefits is the date of receipt of the new claim, except as provided in § 3.106 (c). 38 C.F.R. § 3.400 (s) (38 C.F.R. § 3.106 (c) is not applicable to this claim, as it only pertains to pension and parent's dependency and indemnity compensation). The issue is whether the Veteran's spouse's letter to VA in July 2008 fulfills the criteria for an informal claim under 38 C.F.R. § 3.155. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. Prior to that date, the provision covering an informal claim was found at 38 C.F.R. § 3.155, which stated: Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2014). As an initial matter, there is no record of a reply from the Veteran's spouse that was responsive to the RO's February 12, 2009 letter as to her status as guardian or conservator. The Veteran was found to be competent when service connection for a psychotic disorder was effectuated in February 2001. The RO's February 2001 finding of competency was binding. 38 C.F.R. § 3.353. The RO has the sole authority to make official determinations of competency and incompetency for purposes of disbursement of benefits. Id. Following the RO's termination of benefits in August 2005, there was no finding or assertion of record that the Veteran was incompetent until July 2008. Thereafter, the RO made a competency determination in April 2010, in which the RO again determined that the Veteran was competent. There is nothing to show that VA ever designated the Veteran's spouse as his fiduciary. See 38 U.S.C. § 5502; 38 C.F.R. § 13.55. In summary, at the time of receipt of the Veteran's spouse's letter in July 2008, she was not the fiduciary of the Veteran for VA purposes, and she did not have the ability to file claims on his behalf. Id. There is no basis upon which to consider the Veteran's spouse's July 2008 letter as having been filed by an individual named in 38 C.F.R. § 3.155(a). It is the Veteran, and not his wife, who is the claimant. The Veteran's spouse did not fall into any of the categories discussed in 38 C.F.R. § 3.155(a). She does not claim to have been, and is not shown to have been, a Member of Congress. She was not the Veteran's representative. In this regard, an appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22), received in January 1994, shows that the Veteran appointed Disabled American Veterans as his representative. The form was in effect as of July 2008, and there is nothing to show that the DAV's representation was revoked until 2017. See e.g., VA Form 21-22, received in April 2017 (appointing another representative in place of Disabled American Veterans). Finally, the record does not show, nor does the Veteran contend, that he was not sui juris in July 2008, when the RO received the correspondence from the Veteran's spouse. Therefore, she cannot be considered to have been "acting as next friend of a claimant who is not sui juris." At the time her letter was received in July 2008, the Veteran's spouse was not a proper claimant. Her letter received by VA in July 2008 therefore did not constitute an informal claim. As the July 2008 correspondence from the Veteran's spouse did not satisfy the regulatory requirements for an informal claim under the provisions of 38 C.F.R. § 3.155, it may not serve as a basis for an effective date prior to February 23, 2009 for reinstatement of the Veteran's benefits, and the claim must be denied. The Board has considered the Court's February 2021 decision. On February 23, 2009, the Veteran submitted his request for reinstatement (VA Form 21-4138), stating that it was "in response" to the RO's February 12, 2009 notice. However, an informal claim may only be submitted by certain people, including "a claimant, his or her representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris." 38 C.F.R. § 3.155. The fact that the Veteran submitted his request for reinstatement of benefits following receipt of the RO's February 12, 2009 notice does not provide a basis to find that the Veteran's spouse's July 2008 letter met the criteria for an informal claim, nor does any of the Veteran's language in his request for reinstatement alter the Board's analysis of the informal claim issue. There was no informal claim upon which an earlier effective date could be granted, and the RO correctly assigned an effective date for reinstatement of benefits of February 23, 2009. Accordingly, February 23, 2009, the date VA received the Veteran's request for reinstatement of VA benefits, is the earliest date on which VA benefits may be restored. See 38 C.F.R. § 3.400 (s). In view of the foregoing, the Board concludes that a communication was not received prior to February 23, 2009, that may reasonably be construed as an informal claim for reinstatement of the Veteran's benefits. Therefore, February 23, 2009, is the appropriate effective date for the reinstatement of the Veteran's benefits. 38 C.F.R. §§ 3.106 (b), § 3.400 (s). Accordingly, the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., 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.