Citation Nr: A21020030 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 201223-198960 REMANDED The matter of whether the Appellant was properly removed as the Veteran's Department of Veterans Affairs (VA) fiduciary is remanded. REASONS FOR REMAND This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) October 2020 decision of the Agency of Original Jurisdiction (AOJ). The Appellant timely appealed this decision to the Board of Veterans' Appeals (Board) and elected to submit evidence to a Veterans Law Judge. See December 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The Board notes that the Appellant has made this appeal on behalf of the Veteran as her legal guardian. The Veteran is service-connected for traumatic brain injury. It was determined that she required a fiduciary to handle her VA funds and that matter is not in dispute. The Appellant, the Veteran's father, was appointed her fiduciary in 2004 and served in that capacity for many years. The Appellant and the Veteran's mother, P., serve as the Veteran's legal guardians. The Appellant was removed as the Veteran's fiduciary in October 2020. 38 C.F.R. § 13.500 provides for the removal of fiduciaries. In cases where the removal is due to the fiduciary, the following are reasons for the removal: (i) The fiduciary's further service is barred under § 13.130; (ii) The fiduciary fails to maintain his or her qualifications or does not adequately perform the responsibilities of a fiduciary prescribed in § 13.140; (iii) The fiduciary fails to timely submit a complete accounting as prescribed in § 13.280; (iv) VA or a court with jurisdiction determines that the fiduciary misused or misappropriated VA benefits; (v) The fiduciary fails to respond to a VA request for information within 30 days after such request is made, unless the Hub Manager grants an extension based upon good cause shown by the fiduciary; (vi) The fiduciary is unable or unwilling to provide the surety bond prescribed by § 13.230 or, if applicable, enter into a restricted withdrawal agreement; (vii) The fiduciary no longer meets the requirements for appointment under § 13.100; or (viii) The fiduciary is unable or unwilling to manage the beneficiary's benefit payments, accounts, or investments. There are also procedures which must be undertaken as follows: (1) If the Hub Manager determines that it is necessary to remove a fiduciary and appoint a successor fiduciary, the Hub Manager will: (i) Provide the fiduciary and the beneficiary written notice of the removal; and (ii) Instruct the fiduciary regarding the fiduciary's responsibilities prior to transfer of funds to a successor fiduciary or provide other instructions to the fiduciary. (2) The fiduciary must: (i) Continue as fiduciary for the beneficiary until the Hub Manager provides the fiduciary with the name and address of the successor fiduciary and instructions regarding the transfer of funds to the successor fiduciary; and (ii) Not later than 30 days after transferring funds to the successor fiduciary or as otherwise instructed by the Hub Manager, provide the fiduciary hub a final accounting. In this case, the record does not reflect that the Appellant was provided written notice; nonetheless, he became aware that he had been removed and had telephone and written correspondence with VA. The initial reason was based on item (v), above, in which the fiduciary fails to respond to a VA request for information within 30 days after such request is made, unless the Hub Manager grants an extension based upon good cause shown by the fiduciary. The Appellant indicated that there was miscommunication based on a change in his VA contact and his deletion of the subsequent contact. However, the Agency of Original Jurisdiction also pursued removal on the basis of misuse or item ((iv), above, which contemplates where VA or a court with jurisdiction determines that the fiduciary misused or misappropriated VA benefits) which necessitated an investigation. It is clear from correspondence, that neither the Veteran nor the Appellant were provided an adequate notification and explanation of the February 2021 Field Examination Report which concluded that there was no misuse on the part of the Appellant. 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 date of the decision of the VA Committee on Waivers and Compromises (COWC). See 38 C.F.R. §§ 20.202 (b)(1), (c)(1), 20.301. However, the Board must 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). At this juncture, the Board notes that the removal action and the appeal thereof should not be a piecemeal endeavor as the AOJ was clearly undertaking a continuum of action which has been in the process, although removal was made prior to the conclusion of the misuse investigation and the reason for the timing of that is unclear from the record. The Board further finds that appellate review necessitates consideration of all of the pertinent criteria for removal under 38 C.F.R. § 13.500. Accordingly, the result and impact of the misuse determination needs to be addressed by the AOJ with proper notification to all parties. The Board, thus, considers it a correctible error by the AOJ and that correction raises a reasonable possibility of aiding in substantiating the claim. Accordingly, remand under the AMA for these and similar circumstances remains appropriate for this specific action. It should also be noted that the Veteran has continued to express her desire to have the Appellant as her fiduciary. The matters are REMANDED for the following action: The AOJ should address the result and impact of the misuse determination in the February 2021 Field Examination Report on the removal of the Appellant as the Veteran's fiduciary. The AOJ should also provide proper notification to all parties. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly 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.