Citation Nr: 21007767 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 11-23 413 DATE: February 10, 2021 ORDER The Veteran is not competent for the purpose of direct receipt of Department of Veterans Affairs (VA) compensation benefits; the appeal is denied. FINDING OF FACT The Veteran lacks the mental capacity to contract or manage personal affairs, including the disbursement of funds, without limitation. CONCLUSION OF LAW It is shown by clear and convincing evidence that the Veteran is not competent to handle disbursement of VA funds. 38 U.S.C. §§ 5103, 5103A, 5502 (2018); 38 C.F.R. §§ 3.159, 3.353 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1977 to July 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in December 2016. The Board remanded this appeal for additional evidentiary development in March 2017, December 2017, and November 2018. The Veteran is not competent for the purpose of direct receipt of VA compensation benefits. The Veteran asserts that she is capable of managing her own VA funds. See, e.g., December 2016 Board Hearing Transcript. 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) (2019). 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). There is a presumption in favor of competency, and where reasonable doubt arises regarding a beneficiary’s mental capacity to contract or to manage affairs, including the disbursement of funds without limitation, such doubt will be resolved in the veteran’s favor. The Veteran is service connected for schizophrenia which has been rated as 100 percent disabling since December 1981. The February 2005 rating decision on appeal found the Veteran to not be competent for the purposes of handling disbursement of funds. At a January 2010 VA neuropsychological evaluation, the Veteran reported that she had been abstinent from drugs and alcohol for several years and felt that she was capable of managing her financial affairs. Examination revealed improved neurocognitive functioning, which the examiner found was likely related to her improved mood and continued drug abstinence. The examiner opined that, “from a strictly neuropsychological perspective, based on her current presentation and test score, she has the neurocognitive capacity to manage her own financial affairs.” A February 2010 letter from the Veteran’s payee stated that, when the fiduciary office was first appointed to take care of her benefits, she was deeply in debt, addicted to illegal substances, and out of funds by the third week of every month. In the time since their first appointment, the Veteran’s debts were all paid off, her living standard substantially increased, her drug use decreased (though not completely), her attire immensely improved, and she was able to put aside a small savings. The payee further stated that, though on one level her apparent behavior is improved, he cannot say that her ability to responsibly handle her benefit funds has improved. She did relatively fine when her fiduciary was paying all her bills and providing her with a reasonable personal spending allowance, but their several experiments with allowing her to handle her own Social Security Administration (SSA) benefits were “total failures,” with funds target to last a month spent within a few days of receiving them. The payee stated that she had “absolutely no idea of the concept of once a dollar is spent it is no longer there to spend again . . . as evidenced by her repeated opening of personal checking accounts and overdrawing them.” The payee noted that the Veteran visited the fiduciary office about four times a week to request more money, often for non-financial problems. Finally, the payee noted that the Veteran still had issues with paranoia, possibly aggravated by drug use. At a June 2010 VA mental disorders examination, the examiner noted that the Veteran was able to list off estimated amounts of her VA benefit check, her bills, and her bank account. She stated that the payee was paying all of her bills, but she received a separate SSA check of $1,047 per month which she used to pay for groceries, gas for her car, and entertainment. She reportedly spent $500 per month on groceries for herself, and she might have $20 at most at the end of each month. The examiner noted that the payee’s letter indicated that the payee paid for the Veteran’s transportation, clothing, and entertainment. Thus, the only thing she would need to spend the $1,047 on is food, and the payee’s letter indicated that the Veteran spent all of it within the first two weeks that she received the check. Based on the examination and the payee’s letter, the examiner opined that the Veteran did not have the capacity to manage her own financial affairs. The examiner noted the Veteran’s history of paranoid schizophrenia, cocaine dependence, alcohol dependence, and depression. The examiner found that the Veteran was not a reliable historian and she significantly minimized her psychiatric and substance abuse history on examination. The examiner felt that the Veteran denied her symptoms in an effort to present well in the examination. A December 2010 Certificate of Legal Capacity to Receive and Disburse Benefits noted that the Veteran’s payee was designated as a Supervised Direct Payment (SDP) beneficiary. At the December 2016 Board hearing, the Veteran testified that she was capable of paying all her own bills. Her sister testified that the Veteran took care of her rent, bills, and food. She further testified that the Veteran was responsible and did “everything that she needs to survive.” In March 2017, the Veteran sought inpatient treatment for crack cocaine use. She reportedly began abusing cocaine over 20 years prior, and recently had been abusing it about three days per week. The Veteran also reported that she had spent about $1,000 on cocaine in the previous 20 days and had been taking out lines of credit to pay for it. In May 2017, the Veteran signed herself out of the facility against medical advice. A July 2017 VA neurology note indicated that the Veteran presented with dizziness that started the night prior. She admitted that she had taken cocaine earlier that evening. The examiner opined that the Veteran’s vertigo was likely explained by her hypertension in the setting of cocaine abuse with possible vasospasm. At a May 2017 VA mental disorders examination, the examining psychologist found that the Veteran’s symptoms resulted in total occupational and social impairment. The examiner further opined that it is less likely than not that the Veteran has the mental capacity to contract or to manage her affairs, including the disbursement of funds without limitations. The examiner reasoned that the Veteran had an insufficient understanding and knowledge of her monthly income and costs and that her self-report on the current examination was inconsistent with her recent treatment reports. In June 2018, a VA psychologist reviewed the claims file and opined that it is more likely than not that the Veteran does not have the mental capacity to contract or to manage her own affairs, including the disbursement of funds without limitation. The examiner noted that during the Veteran’s Board hearing, her thought patterns were characterized by a moderate amount of confusion and was not linear and logical, which was consistent with her thought patterns during her May 2017 examination. The examiner also noted the Veteran’s recent inpatient treatment for cocaine use and related spending. A March 2019 memorandum from a field examiner noted that, during an interview with the Veteran, she demonstrated that she was knowledgeable of her financial assets and obligations. She identified all income sources and amounts and related specific information regarding day-to-day expenditures. The field examiner noted that the Veteran had successfully managed her VA benefits under the SDP program since December 2010. Consequently, the examiner requested that the Veteran be extended in SDP beyond the 24-month limitation while pending the determination of competency. In February 2020, the Veteran presented to the VA emergency department requesting rehabilitation for cocaine use. She reported that he had been smoking crack cocaine about three times per week. Additionally, she reported using crack cocaine 25 out of the past 30 days. She stated that it cost her a lot of money and she needed to be able to pay her rent and bills. The examiner agreed to treat the Veteran on an outpatient basis. In March 2020, the Veteran presented for individual psychotherapy at the VA. She reported only three days of sobriety. An April 2020 VA mental health note indicated that the Veteran was notified that she had been accepted to the inpatient substance abuse treatment program for a diagnosis of cocaine use disorder, severe. However, admission was delayed due to COVID-19 restrictions. In April and May 2020, the Veteran attended telephone group counseling for substance abuse. However, from June 2020 to September 2020, the Veteran was a no-show for follow-up appointments. At a November 2020 VA mental health examination, the examiner diagnosed schizophrenia, severe cocaine use disorder in partial remission, and severe alcohol use disorder in partial remission. Symptoms included anxiety, suspiciousness, chronic sleep impairment, impaired judgment, difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control. The examiner found that the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Further, the examiner opined that the Veteran is unable to competently manage her benefits. The examiner reasoned that the Veteran demonstrates minimal insight, significantly impaired judgment, and significantly reduced impulse control. The examiner noted a long history of schizophrenia, delusional thinking, and substance abuse. Finally, the examiner noted that the Veteran had spent significant amounts of money on substances without paying her bills and tending to her needs. Based on the foregoing, the Board finds that the evidence of record clearly and convincingly shows that the Veteran is not competent to manage her VA funds at this time. This is particularly evident during the periods of heavy cocaine abuse, documented in 2017 and most recently in 2020. The Veteran herself admitted on multiple occasions that she spent significant amounts of money on cocaine during periods of relapse. While the Board commends her efforts to quit using cocaine, the Board also notes that the Veteran did not complete either rehabilitation program that she entered in 2017 or 2020. The Board’s finding is consistent with the medical evidence of record. Although the January 2010 neurological examination revealed that the Veteran had the capacity at that time to manage her financial affairs, the examiner specified that her neurocognitive ability was based on her abstinence from cocaine and alcohol for several years and resulting improved mood. However, throughout the appeal period the Veteran has not shown that she is capable of maintaining abstinence from cocaine, and that when she does use cocaine, she abuses it severely. Moreover, the Board notes the June 2010, May 2017, June 2018, and November 2020 VA examiners all definitively opined that the Veteran was not capable of managing her financial affairs. In addition to the Veteran’s cocaine use disorder, the examiners noted that the Veteran exhibited significantly impaired judgment, insight, and impulse control. Their reports are consistent with the detailed letter provided by the Veteran’s payee in February 2010. The Board acknowledges the well-meaning Brief presented by the Veteran’s representative in January 2021 in which it was argued, inter alia, that the Veteran is competent to handle VA funds because she was competent enough to open lines of credit to obtain additional funds to purchase cocaine. The Board also acknowledges the lay statements of record, to include the Veteran’s sister’s testimony at the Board hearing. Even assuming that the Veteran was able to handle her finances at various points throughout the appellate period, the management of her finances has been supervised under the SDP. Moreover, the Veteran herself has admitted to treatment providers that she is unable to control or manage her finances when she is abusing cocaine. Consequently, the assertions of the Veteran, her representative, and her sister do not offset the evidence of record discussed above. (Continued on next page.) In sum, the evidence of record clearly and convincingly rebuts the presumption of the Veteran’s competency to handle disbursement of VA funds. Although the Veteran has asserted that she is currently able to manage her own financial affairs, the most probative medical evidence of record clearly and convincingly shows that the severity of the Veteran’s cocaine addiction prevents her from being able to do so. As such, entitlement to the restoration of competency status for the purposes of handling VA benefit payments is denied. 38 C.F.R. §§ 3.102, 3.353(d). Michael A. Pappas 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED