Citation Nr: A21020292
Decision Date: 12/21/21	Archive Date: 12/21/21

DOCKET NO. 211020-193313
DATE: December 21, 2021

REMANDED

Whether the appellant is competent to handle disbursement of Department of Veterans Affairs (VA) funds is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Army from October 1942 to June 1946. He passed away in June 1984. The appellant is the Veteran's surviving spouse.

A September 2019 rating decision by a VA Regional Office (RO) determined that the appellant is not competent to handle disbursement of funds. After she requested Higher-Level Review of that decision, a July 2021 rating decision confirmed that finding of competency. In an October 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal.  38 C.F.R. § 20.301.

Whether the Veteran is competent to handle disbursement of VA funds is remanded.

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) (2020). Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, the rating agency will not make a decision 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).

Here, the RO based its incompetency determination on a March 2019 examination for housebound status or permanent need for regular aid and attendance (VA Form 21-2680). In that form, the examining physician diagnosed dementia, among other physical disabilities. The physician also marked "No" to the question, "Does the claimant have the ability to manage his/her own financial affairs?" The form instructed the examiner to provide a rationale; however, none was provided.

The appellant argues that she has been able to manage her VA funds by directing her son and daughter to make withdrawals and use a set amount of money to purchase groceries or pay bills on the appellant's behalf. See June 2019 statement. The record lacks treatment reports regarding the appellant's dementia or ability to manage her VA funds.

In light of the foregoing, the current record is not "clear and convincing" as to whether the appellant is competent for purposes of disbursement of VA funds. 38 C.F.R. § 3.353 (c). Consequently, the appellant should be provided a VA examination to specifically discuss her competency to manage her VA funds.

The matter is REMANDED for the following action:

Schedule the appellant for a VA medical examination to obtain an opinion to ascertain the appellant's competency. The examiner should opine as to whether the appellant is competent to handle disbursement of VA funds. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.

The appellant is hereby advised that failure to report for a VA medical examination, without good cause, may result in denial of her claim. 38 C.F.R. § 3.655.  

 

 

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Roya Bahrami, 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.