Citation Nr: A21016608 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 210526-184008 DATE: October 12, 2021 REMANDED The matter of whether the appointment of D.L. as fiduciary to manage the Veteran's Department of Veterans Affairs (VA) benefits was proper is remanded. REASONS FOR REMAND This appeal comes to the Board of Veterans' Appeals (Board) from a decision of the VA Agency of Original Jurisdiction (AOJ). In May 2021, a timely appeal was received and an election for Direct Review by a Veteran Law Judge was made. See July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The AOJ determined that the Veteran is incompetent due to dementia. See November 2020 rating decision. The matter of whether he needs an appointed fiduciary is not in dispute. The AOJ apparently sought to determine if the Veteran's spouse, V.G., would be a suitable fiduciary, but she did not complete the process by submitting a VA Form 21P-4703, Fiduciary Agreement. The AOJ then then named D.L. as fiduciary. However, information has been submitted by the Veteran and his spouse to have his spouse named as the fiduciary. The Veteran has indicated that she has cared for him and his finances for many decades. Pursuant to 38 U.S.C. § 5502, VA has the authority to appoint a fiduciary when it appears to be in the interests of a VA beneficiary. Where it appears to the Secretary that the interest of the beneficiary would be served thereby, payment of benefits under any law administered by the Secretary may be made directly to the beneficiary or to a relative or some other fiduciary for the use and benefit of the beneficiary, regardless of any legal disability on the part of the beneficiary. Where, in the opinion of the Secretary, any fiduciary receiving funds on behalf of a Department beneficiary is acting in such a number of cases as to make it impracticable to conserve properly the estates or to supervise the persons of the beneficiaries, the Secretary may refuse to make future payments in such cases as the Secretary may deem proper. The provisions of 38 U.S.C. § 5507 contain the standards for VA to follow when certifying an individual as a qualified fiduciary and there are several steps in that process. 38 C.F.R. § 13.100 further provides for fiduciary appointments. Under 38 C.F.R. § 13.100 (a) Authority: Except as prescribed in paragraph (b) of this section, the Hub Manager will appoint a fiduciary for a beneficiary who: (1) Has been rated by VA as being unable to manage his or her VA benefits; (2) Has been determined by a court with jurisdiction as being unable to manage his or her financial affairs, or (3) Has not reached age of majority. There were exceptions which are inapplicable in this case. The regulation provides the following for the Initial appointment under section (d). In appointing a fiduciary, the Hub Manager will make every effort to appoint the person, agency, organization, or institution that will best serve the interest of the beneficiary. The Hub Manager will consider the results of a field examination, which will include a face-to-face meeting with the beneficiary and the beneficiary's dependents at their residence when practicable, and will conduct the investigation prescribed in paragraph (f) of this section. The Hub Manager will also consider whether: (1) VA benefits can be paid directly to the beneficiary with limited and temporary supervision by VA, as prescribed in § 13.110; (2) The circumstances require appointment of a temporary fiduciary under paragraph (h) of this section; and (3) The proposed fiduciary is complying with the responsibilities of a fiduciary prescribed in § 13.140 with respect to all beneficiaries in the fiduciary program currently being served by the proposed fiduciary and whether the proposed fiduciary can handle an additional appointment without degrading service for any other beneficiary. Under (e), there is an order of preference in appointing a fiduciary. The Hub Manager will consider individuals and entities for appointment in the following order of preference, provided that the proposed fiduciary is qualified and willing to serve and the appointment would serve the beneficiary's interest: (1) The preference stated by the beneficiary in the fiduciary program, if the beneficiary has the capacity to state such a preference. If the beneficiary has a legal guardian appointed to handle his or her affairs, the Hub Manager will presume that the beneficiary does not have the capacity to state a preference and will consider individuals and entities in the order of preference prescribed in paragraphs (e)(2) through (10) of this section; (2) The beneficiary's spouse; (3) A relative who has care or custody of the beneficiary or his or her funds; (4) Any other relative of the beneficiary; (5) Any friend, acquaintance, or other person who is willing to serve as fiduciary for the beneficiary without a fee; (6) The chief officer of a public or private institution in which the beneficiary receives care or which has custody of the beneficiary; (7) The bonded officer of an Indian reservation, if applicable; (8) An individual or entity who has been appointed by a court with jurisdiction to handle the beneficiary's affairs; (9) An individual or entity who is not willing to serve without a fee; or (10) A temporary fiduciary, if necessary. Section(f) provides guidance for the investigation of a proposed fiduciary; (g) provides for expedited appointment; and (h) provides for temporary fiduciary appointments. In this case, a relevant field examination indicated that, as noted, the AOJ attempted to process his wife (V.D.) as his fiduciary, but she did not submit the necessary form. See March 2020 Report of Field Examination (field examiner indicated that in contact with the Veteran's spouse, she indicated that she had no memory of the four requests for a VA Form 21P-4703, and thus concluded that she did not have the ability to prudently manage the Veteran's VA funds, and noting that she did not provide the examiner with other family members as potential fiduciaries). They have both currently indicated her willingness to be the VA fiduciary. The Board notes that pursuant to 38 C.F.R. § 13.100 (e), members of the Veteran's family should be considered, if they are qualified and willing to serve, for appointment as the Veteran's fiduciary prior to the appointment of a professional service, as was chosen in this case. The AOJ proceeded in the proper manner, but given the correspondence from the Veteran and his wife and what appears to be minimal actual contact/communication with the Veteran's spouse to determine her suitability, the Board finds that they should be given another opportunity to have her appointed as fiduciary. The Board notes that since the Veteran opted into the Appeals Modernization Act (AMA) review system, ordinarily the Board can only consider the record as of the appealed decision. See 38 C.F.R. §§ 20.202 (b)(1), (c)(1), 20.301. The Board must also remand cases where there is a pre-decisional duty to assist error or correction of any error by the AOJ, other than a duty to assist error, in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the Appellant's claim. See 38 C.F.R. § 20.802(a). Additionally, the standard of "no reasonable possibility" is not fulfilled under the "mere belief that the likelihood" of substantiating the claim is low. See Jones v. Wilkie, 918 F.3d 922, 926 (2019) (interpreting similar language from 38 U.S.C. § 5103A). The remand must specify the action to be taken by the AOJ. In this case, it was pre-decisional error for the AOJ in failing to undertake the development to determine whether the Veteran's wife would be a suitable fiduciary. The field examiner indicated that the Veteran's spouse did not recall his requests for the necessary VA Form, so she was basically incapable of being the fiduciary; however, she has cared for the Veteran since the 1960's and it appears that there was likely a misunderstanding or lack of understanding regarding the form which should not be the sole basis for rejecting her as the fiduciary. As indicated above, the Veteran has expressed preference for her, the spouse is the first listed person to be considered, and the spouse is willing to be the fiduciary. The matters are REMANDED for the following action: Afford the Veteran's spouse, V.G., the opportunity to complete a VA Form 21P-4703, Fiduciary Agreement and conduct all necessary development to determine whether she would be a suitable fiduciary. 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.