Citation Nr: 21029611 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 10-13 864A DATE: May 14, 2021 ORDER The Veteran's spouse has been selected as the Veteran's fiduciary for the purpose of managing his Department of Veterans Affairs (VA) benefits; the appeal is dismissed. The Veteran is not competent to manage the disbursement of VA benefits; the appeal is denied. FINDINGS OF FACT 1. In an October 2011 rating decision, the Regional Office (RO) proposed a finding that the Veteran was incompetent. 2. In a November 2011 letter, the Veteran was notified of the proposed incompetency finding and was advised that if VA deemed him incompetent then a fiduciary to manage his VA benefits may be appointed. 3. A January 2012 rating decision determined that the Veteran was not competent to handle the disbursement of VA funds. 4. VA initially appointed D.S. as the Veteran's fiduciary and the Veteran disputed that finding, requesting that his spouse be appointed as his fiduciary. 5. VA subsequently appointed the Veteran's wife as his fiduciary, she signed a fiduciary agreement, and she is the currently appointed fiduciary. 6. There is currently no justiciable case or controversy for active consideration by the Board of Veterans' Appeals (Board) as to the matter of the proper fiduciary. 7. The Veteran lacks the mental capacity to contract or manage his own affairs, including the disbursement of VA funds, without limitation. CONCLUSIONS OF LAW 1. The Veteran's appeal as to the issue of the proper fiduciary is dismissed as no justiciable case or controversy is before the Board at this time. 38 U.S.C. §§ 7102, 7104, 7105, 7107; 38 C.F.R. §§ 19.44, 20.101, 20.200, 20.204. 2. The Veteran is not competent for the purpose of receiving direct payment of his VA benefits, and restoration of competency is not warranted. 38 U.S.C. §§ 5107, 5502; 38 C.F.R. §§ 3.102, 3.353. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether the Veteran's spouse should be selected as the Veteran's fiduciary for the purpose of managing his VA benefits In an October 2011 rating decision, the RO proposed a finding that the Veteran was incompetent. In a November 2011 letter, the Veteran was notified of the proposed incompetency finding and was advised that if VA deemed him incompetent then a fiduciary to manage his VA benefits mat be appointed. A January 2012 rating decision determined that the Veteran was not competent to handle the disbursement of VA funds. The rating decision noted that the prior proposed a finding of incompetency based on the review of his recent July 2011 posttraumatic stress disorder (PTSD) examination which included a medical opinion that the Veteran was not capable of managing his own financial affairs. The Veteran reported to the examiner that he preferred to have his spouse and son manage his finances because of his memory problems and previous problems handling finances. The RO indicated that since there was a definitive finding of incompetency by a physician in this case and he was not shown to be able to manage personal affairs to include disbursement of funds, he was incompetent for purposes of managing VA payments. Thereafter, VA selected D.S. as the Veteran's fiduciary. 38 U.S.C. § 5506 defines the term "fiduciary," for purposes of 38 U.S.C. Chapter 55 (Minors, Incompetents, and Other Wards) as: (1) a person who is a guardian, curator, conservator, committee, or person legally vested with the responsibility or care of a claimant (or a claimant's estate) or of a beneficiary (or a beneficiary's estate); or (2) any other person having been appointed in a representative capacity to receive money paid under any of the laws administered by the Secretary for the use and benefit of a minor, incompetent, or other beneficiary. The Federal Register in 78 FR 63139-01, clarifies the definition of fiduciary provided in 38 U.S.C. § 5506 as follows: The term 'fiduciary' is different than the term 'guardian' as the latter term... refers to a guardian or conservator appointed by a state court after such court makes a determination that a Veteran is incompetent. VA benefits may be paid to a duly recognized fiduciary on behalf of a person who is mentally incompetent. 38 U.S.C. § 5502; 38 C.F.R. § 3.850. The Veteran disputed the selection of D.S. as his fiduciary and presented testimony with his spouse at a Board hearing in May 2019. They essentially testified that the Veteran was not competent, but that his spouse handled the finances and should be selected as the fiduciary instead of D.S., the current fiduciary. Thereafter, the RO replaced D.S. with the Veteran's spouse per the Veteran's request. In April 2021, she signed her fiduciary agreement and is currently the Veteran's appointed fiduciary. Accordingly, there is no justiciable case or controversy regarding the fiduciary issue currently before the Board as contemplated by 38 U.S.C. §§ 7102, 7104, 7107 and 38 C.F.R. § 19.4. Consequently, in the absence of any justiciable question, this issue must be dismissed. 2. Whether the Veteran is not competent to manage the disbursement of VA benefits As noted above, the RO determined that the Veteran was incompetent. From the Board hearing, it is clear that the Veteran is not actually disputing the finding of incompetency but was rather disputing the appointment of D.S. as his fiduciary because he wanted his spouse to be named as his fiduciary. This matter has since been resolved, but the incompetency issue was not formally withdrawn so will be addressed herein. Pursuant to a Board remand, the Veteran was afforded a VA examination in December 2019. The examiner indicated that the Veteran did not have the capacity to manage his finances in a well-reasoned and responsible manner. The examiner referred to his difficulty managing money during the past five years, noting that he had spent his earnings reportedly recklessly without regard to his and his wife's welfare with a history of spending the money on drugs or alcohol. The examiner opined that it was more likely than not that the Veteran would act in a manner that is not well-reasoned or responsible in managing his financial resources and responsibilities. An additional February 2021 medical opinion further opined that the Veteran is not deemed capable of managing VA benefits. The examiner indicated that the Veteran has a longstanding history of erratic behaviors such as impulsivity, consistent irresponsibility, and recklessness. The Veteran had history of polysubstance abuse, failure to follow social norms, and unlawful behaviors that have led to multiple incarcerations. In this case, the VA examiners were aware of the Veteran's medical history, provided fully articulated opinions, and also furnished reasoned analyses. The Board therefore attaches significant probative value to this medical evidence, and the most probative value in this case, as they are well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Moreover, the Veteran and his spouse both testified to the effect that his spouse handles the finances for both of them. 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: insurance (38 U.S.C. § 1922), and, subject to 38 C.F.R. § 13.56 of this chapter, disbursement of benefits. Such determinations are final and binding on field stations for these purposes. 38 C.F.R. § 3.353(b); see also, 38 C.F.R. §§ 13.55, 13.56, 13.57 (outlining the regulations pertaining to direct payment and the appointment of fiduciaries). Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities. Determinations relative 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). 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); see also, 38 C.F.R. § 3.102 (reiterating VA's long-standing policy to resolve all doubt in favor of the Veteran). Whenever it is proposed to make an incompetency determination, the beneficiary will be notified of the proposed action and of the right to a hearing as provided in 38 C.F.R. § 3.103. Such notice is not necessary if the beneficiary has been declared incompetent by a court of competent jurisdiction or if a guardian has been appointed for the beneficiary based upon a court finding of incompetency. If a hearing is requested, it must be held prior to a rating decision of incompetency. Failure or refusal of the beneficiary after proper notice to request or cooperate in such a hearing will not preclude a rating decision based on the evidence of record. 38 C.F.R. § 3.353 (e). In this case, the proper procedure was followed. The probative medical evidence does not show that the Veteran was found to be competent to manage his VA funds. Instead, the evidence indicates that the Veteran has psychiatric impairment and a history of alcohol and polysubstance abuse. The medical opinions uniformly show that the Veteran does not possess adequate capacity to manage his funds. The Board finds these medical opinions to be probative and supported by the documentary record. The medical evidence, which include definite expression regarding the question at hand, is clear, convincing and leaves no doubt as to the Veteran's incompetency. Here, upon review of all the evidence of record, the Board finds that the Veteran is not competent for the purpose of managing the disbursement of his VA benefit. In this case, the presumption of competency is rebutted by the most probative evidence which is the clear and convincing medical evidence. 38 C.F.R. § 3.353(d); see also 38 C.F.R. § 3.102. This evidence established that the Veteran is incapable of managing his finances. In reaching this conclusion, the Board finds that the clear and convincing evidence leaves no doubt to be resolved in this matter. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals J. Connolly, Attorney for the Board Department of Veterans Affairs 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.