Citation Nr: A21020098 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200725-100953 DATE: December 16, 2021 ORDER Reinstatement of compensation benefits following renouncement is denied. FINDING OF FACT In a November 4, 2019, statement, the Veteran requested to cancel permanently all his Department of Veterans Affairs (VA) service-connected benefits. CONCLUSION OF LAW The criteria for reinstatement of compensation benefits are not met. 38 U.S.C. § 5306; 38 C.F.R. § 3.106. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2013 to January 2017. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a December 2019 rating decision by a VA Regional Office, which is the Agency of Original Jurisdiction (AOJ). The Veteran elected the Board's evidence submission docket. July 2020 VA Form 10182. This restricts the Board's review to the evidence of record at the time of the December 2019 rating decision and evidence submitted with, or within 90 days of filing of, the Notice of Disagreement initiating appellate review. 38 C.F.R. § 20.303. In September 2021, VA received a durable power of attorney form in favor of the Veteran's father, dated December 20, 2012. While VA recognizes this document, the April 2019 VA Form 21-22, Power of Attorney in favor of Florida Department of Veterans Affairs was enacted later in time. Therefore, the Board continues to recognize the Florida Department of Veterans Affairs as the Veteran's representative in the course of this appeal. Entitlement to reinstatement of VA compensation benefits. The Veteran and his father contend that the Veteran's November 2019 renouncement of VA benefits should be rescinded, and his benefits should be reinstated. In this regard, they argue the Veteran was not rationally thinking when he made the renouncement, which was done in order to re-enlist in the military, even though this was impossible. In this way, they essentially argue that the Veteran was not competent to renounce his benefits. However, upon review of the record and law, the renouncement was valid, and statute and regulation require the termination of his benefits upon the filing of the renouncement. Accordingly, the appeal must be denied. Any person entitled to pension, compensation, or dependency and indemnity compensation under any of the laws administered by VA may renounce his or her right to that benefit. The renouncement will be in writing over the person's signature. Upon receipt of such renouncement, 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 U.S.C. § 5306(a); 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 by VA. 38 C.F.R. § 3.106(b). In the instant case, the Veteran was awarded service connection for a right hip and a right knee disability in a February 2017 rating decision, with a 10 percent and noncompensable rating respectively. Thereafter, he was awarded service connection for an unspecified schizophrenia spectrum disorder and other psychotic disorder, with a 70 percent disability rating, in a June 2019 rating decision. VA then received a November 4, 2019, statement on that same day. In the statement, the Veteran stated he wished to cancel all his VA service-connected benefits. He reiterated that the "purpose of this claim is to permanently cancel all benefits due to my own religious beliefs." The Veteran signed and dated the statement twice. In a December 2, 2019, letter, the AOJ informed the Veteran that it had received his renouncement, and his benefits would be terminated effective December 1, 2019, the first day of the month after his renouncement. The letter informed the Veteran that if at any time he wished to receive VA compensation in the future he would "need to reapply and begin the entire process over again." The Veteran then initiated the current appeal process. Upon review of the record, the law is dispositive, and the renouncement was valid. In this regard, the renouncement was made by the Veteran, above his signature, and for all the VA benefits. See 38 C.F.R. § 3.106(a). As of the receipt of the filing, the Veteran was then denied any and all rights thereto from such filing. Id. The renouncement is effective upon receipt of filing. There is no provision in the law for a rescission of a renouncement. Instead, the Veteran was, and is, advised to file a new claim, for instance on a VA 21-526EZ, to have his benefits reinstated. The Veteran's father implicitly argued that he was not competent to renounce his benefits, by stating the Veteran's decision was irrational and he was delusional. His father referenced the extensive mental health treatment the Veteran had undergone, including at least five involuntary institutionalizations under the Florida Mental Health Act of 1971. In this regard, the Board recognizes that the Veteran has a diagnosis of an unspecified schizophrenia spectrum disorder and other psychotic disorder, which causes severe functional impairment. This is clearly shown by a June 2019 VA examination, wherein he was given the above diagnosis. Further, the record otherwise supports the Veteran's mental health history as given by his father. Notwithstanding, the Veteran's father reference the power of attorney in his favor signed December 20, 2012. Notably, this document was enacted prior to his military service, and the recognized onset date of his mental health disabilities. Thus, the power of attorney is not persuasive evidence in considering competency. 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 disbursement of benefits, subject to 38 C.F.R. § 13.56. Such determinations are final and binding on field stations for these purposes. 38 C.F.R. § 3.353(b). 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. 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. 38 C.F.R. § 3.353(c). Moreover, there is a presumption in favor of competency, and where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency. 38 C.F.R. § 3.353(d). The record does not indicate that the Veteran was not competent when he renounced his benefits. In this regard, the June 2019 VA examiner opined that he was competent, and capable of managing his financial affairs. The Board finds the opinion of the VA examiner highly probative in this instance, as it was given with full knowledge of the Veteran, after review of the record, and after examination of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, there is no basis to find that the Veteran's 70 percent rating, or his history of psychosis, per se showed incompetency. Likewise, there is no basis that he required a competency determination prior to the termination of his benefits in November 2019. There is no law or regulation requiring a competency determination after a veteran expresses the intention to renounce his or her compensation benefits. Nor is there a law or regulation requiring the consultation or concurrence of a fiduciary. Rather, the law is clear that all that is necessary is the veteran renouncement above his signature. 38 C.F.R. § 3.106. Importantly, the proper remedy to reinstate benefits after a renouncement is to file a new application for benefits. 38 C.F.R. § 3.106(b). The Veteran was informed of this in the December 2019 notification letter. After the Board appeal was filed, in October 2020, the AOJ again notified the Veteran and his representative that in order to reinstate his benefits, he needed to file a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. The AOJ provided the Veteran with this form. On December 31, 2020, the AOJ contacted the Veteran and spoke with his father. They again informed him of the necessity to file the application for benefits. In January 2021, the AOJ notified the Veteran of this duty, and informed him of the contact with his father, and provided him with another Form 21-526 EZ. To date, VA has not received the VA Form 21-526EZ. The Board again reiterates the importance of filing the form for an application of benefits, as it is the only way to reinstate the Veteran's renounced benefits. In sum, the Board is sympathetic to the Veteran's mental health diagnoses, and recognizes it effects his function. The Board recognized and considered the Veteran's and his father's arguments and statements, which have support in the record. However, the Board is unable to provide a legal remedy. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("[T]his Court must interpret the law as it exists, and cannot 'extend... benefits out of sympathy for a particular [claimant].'"). Under the law, VA is required to terminate benefits upon receipt of a statement in writing, over the person's signature, that renounces the total amount of the benefit to which the person is entitled. 38 C.F.R. § 3.106. The Veteran's November 2019 statement meets this standard unquestionably; accordingly, the benefit-of-the-doubt rule does not apply. Accordingly, the Veteran's renouncement was valid, and the request for reinstatement of those benefits must be denied. 38 U.S.C. § 5306; 38 C.F.R. § 3.106. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.