Citation Nr: A21018904 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 200618-94008 DATE: November 26, 2021 ORDER Entitlement to restoration of competency for the purpose of handling the disbursement of funds associated with the payment of Department of Veterans Affairs (VA) benefits is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, he possessed the mental capacity to contract or manage his own affairs, including the disbursement of VA funds, without limitation during the claim period. CONCLUSION OF LAW The Veteran is competent for the purpose of receiving direct payment of his VA benefits; restoration of competency is warranted. 38 U.S.C. §§ 5107, 5502; 38 C.F.R. §§ 3.102, 3.353. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1988 to May 1992, April 1993 to August 1993, February 1994 to July 1994, June 2005 to June 2006, August 2007 to September 2007, May 2008 to May 2010, and August 2010 to October 2011. The Veteran's active duty service included service in the Southwest Asia theater of operations. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law created a new framework for veterans dissatisfied with VA's decisions on their claims to seek review. In a rating decision dated November 5, 2018, a VA Regional Office (RO) found that the Veteran was not competent to handle the disbursement of his VA Funds. Two days later, on November 7, 2018, VA associated a Certificate of Legal Capacity to Receive and Disburse Benefits and Fee Authorization with the Veteran's claims file. This certificate indicated that the Veteran's spouse at the timeL.was to be appointed as the Veteran's fiduciary. The instant appeal stemmed from an August 26, 2019 request by the Veteran for the appointment of a new fiduciary. Specifically, the Veteran requested a new fiduciary as he had moved out of his home with L. due to alleged domestic difficulties. On September 23, 2019, VA completed a Beneficiary Field Examination. The examination report indicated that the Veteran was going through a difficult divorce with L. and that it would be in the Veteran's best interest for VA to appoint a new fiduciaryidentified as RWG Strategy. On September 25, 2019, VA's Fiduciary Intake Center in Janesville, Wisconsin issued a notification letter indicating that a new payee had been certified to receive the Veteran's money and assets. Specifically, the letter indicated that RWG Strategy was the Veteran's new beneficiary and that L. was to turn all of the Veteran's VA funds over to RWG Strategy within 15 days. Thereafter, on June 18, 2020, VA received a completed VA Form 10182, Notice of Disagreement (NOD), from the Veteran. On his NOD, the Veteran referenced the September 25, 2019 decision concerning RWG Strategy and indicated that he wished for the Board of Veterans' Appeals (Board) to (1) make a competency determination, and (2) completely remove the need for a fiduciary. On his NOD, the Veteran selected the Hearing Review option. Pursuant to his selection, the Veteran testified at a Board hearing before the undersigned on October 26, 2021. Competency 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). 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). For the presumption of competency to apply, there must be reasonable doubt as to the beneficiary's mental capacity, meaning approximate balance of positive and negative evidence. 38 C.F.R. § 3.102; Sims v. Nicholson, 19 Vet. App. 453, 459 (2006). For the purpose of disbursement of VA funds, rating agencies have the authority to make determinations of competency and incompetency. 38 C.F.R. § 3.353(b)(1). Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, the rating agency 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 as 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. Id. In this case, the evidence of record is at least in equipoise as to whether the Veteran is competent to handle his own financial affairs. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board grants the Veteran's appeal. In support of this determination, the Board notes that VA's original incompetency determination in November 2018 was based primarily upon remarks made by a VA PTSD examiner in April 2017. Specifically, the examiner opined that the Veteran was not capable of managing his own financial affairs. In support of this determination, the examiner stated that the Veteran's wife, L., was his "legal guardian." However, in reviewing the claims file, it is unclear whether L. was ever appointed the Veteran's guardian pursuant to proceedings in any state court system. Indeed, at the time of the September 2019 decision on appeal, the Veteran and L. had separated, were not residing together, and were not to contact each other. See Court Orders received in September 2019; August 2019 VA Form 21-4138. Separate from the Veteran's marital status with L., the Board notes that, following a June 2019 VA mental health consultation, a VA medical professional opined that the Veteran did not have any conflicts or problems regarding financial issues. These June 2019 comments were consistent with the Veteran's behavior and testimony during his October 2021 Board hearing. In comparison, in April 2019, VA provider Dr. Reddy completed a VA Form 21-2689, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. In this examination report, Dr. Reddy stated that the Veteran did not have the mental capacity to manage his own benefit payments. However, the Dr. Reddy's conclusion was based solely upon the circumstances of L. already being appointed fiduciary. From this evidence of record, the Board finds that the evidence is at least in approximate balance regarding the Veteran's mental capacity to contract or to manage his own affairs. When there is an approximate balance of positive and negative evidence concerning mental capacity, the presumption of competency applies. See 38 C.F.R. § 3.353(d); Sims, 19 Vet. App. at 459. Thus, the Board finds the Veteran competent for the purpose of handling the disbursement of funds associated with the payment of VA benefits. The Veteran's appeal is granted. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.