Citation Nr: 22018207 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-42 905 DATE: March 28, 2022 ORDER Entitlement to restoration of competency, for the purposes of handling the disbursement of funds associated with the payment of Department of Veterans Affairs (VA) benefits, is denied. FINDING OF FACT The Veteran lacks the mental capacity to contract or manage his own affairs, including the disbursement of VA funds, without limitation. CONCLUSION OF LAW The Veteran is not competent for the purpose of receiving direct payment of his VA benefits, so that restoration of competency is not warranted. 38 U.S.C. §§ 5107, 5502; 38 C.F.R. §§ 3.102, 3.353. REASONS AND BASES FOR FINDING AND CONCLUSION 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. Considerations of medical opinions will be in accordance with the principles in paragraph (a) of this section. 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). The Veteran is service-connected for schizophrenia, undifferentiated type, rated most recently as 100 percent disabling from November 1988. In January 2017, the Regional Office (RO) proposed a finding of incompetency. The Veteran did not respond. A March 2017 rating decision determined that the Veteran was not competent to handle the disbursement of VA funds. The determination was based on medical evidence reflecting an inpatient treatment for the Veteran at a VA facility twice in December 2016 as well as a statement from his treating physician which indicated that the Veteran had a chronic mental illness with a long history of non-adherence to treatment and a chronic substance use disorder. The examiner stated that the Veteran would benefit from having a fiduciary appointed to ensure that his VA service-connected funds were no longer used for his substance use disorder. The inpatient records showed that the Veteran was admitted with an altered mental state. He was alert, oriented to place and self, but had loose associations, tangential thought processes, and was unable to provide an accurate history. He stated that he was admitted because he was "dodging cars in the snow and was caught and brought here." The examiner indicated that it was difficult to evaluate if the Veteran was hallucinating or responding to internal stimuli given his degree of confusion. He did follow commands and cooperated, did not appear agitated, did not seem drowsy/waxing levels of consciousness, or had poor attention. It was important to note that the Veteran was recently seen in the Emergency Department (ED) for medication refill with no mention of altered mental status or confusion. The outpatient psychiatrist was seeing the Veteran monthly for haloperidol depot injections once a month, with his most recent administration being two weeks early. The Psychiatry Department was consulted in the ED and recommended to rule out other causes of delirium. He was positive for cannabinoids and cocaine, but his state was thought to be from dehydration. Shortly thereafter, the Veteran was admitted again with an altered mental state. It was noted that he had a very similar presentation in the prior admission, but had a negative delirium workup. Per a psychiatric evaluation, there was no indication for inpatient psychiatric admission at that time. His condition resolved with fluids, and he was discharged to his aunt's home on December 20, 2016, with adult day care arranged. He was found sleeping in someone else's car by the police and was brought back in for evaluation. The Veteran arrived in an unkempt condition and his clothes were soiled with stool and urine. Given his mental status, it was very difficult for the examiner to obtain an accurate history. He was seen in the ED alert and oriented to self and date, but thought he was at a military barracks. He had loose associations as well as tangential and pressured speech. He followed commands and could answer some questions appropriately. He was unable to clearly state why he was in the ED or what he did between being discharged before and readmitted. The Psychiatry Department saw the Veteran in the ED and noted that he was delirious. The Veteran's psychiatric examiner spoke with his brother who agreed with him being admitted for inpatient psychiatric treatment. There was concern that the Veteran was actively psychotic, so he was transferred to psychiatric treatment. He did not have decision-making capacity and he was not at his baseline per his brother. Subsequently after a fiduciary was appointed for the Veteran, the fiduciary notified the RO that the Veteran had been at a facility, but stopped taking his medication and left the facility. He was then not allowed back into the facility due to his behavior. The fiduciary indicated that she had been called by the police because the Veteran had tried to break into a house where he used to live, but someone else lives at the home now. The Veteran was taken to a VA hospital and was started back on his medication, but he had left that facility. The Board attaches significant probative value to medical evidence in this case. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran submitted a notice of disagreement with the decision to find him incompetent, but presented no specific assertions and failed to show for his scheduled hearing without explanation. The medical evidence does not show that the Veteran is competent to manage his VA funds. Instead, it indicated that the Veteran has active psychiatric symptoms which include psychotic symptoms. Furthermore, the examiner indicated that the Veteran did not possess adequate capacity to manage his funds, but rather needs a fiduciary to manage his funds. It also indicates that adult day care has been used for supervision. Overall, the evidence of record does not establish that the Veteran has competency to handle funds. Rather, the most probative evidence establishes that the Veteran continues to not be competent to handle funds. Consequently, the finding of incompetency is warranted. 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. 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. This evidence is clear and convincing. 38 C.F.R. § 3.353 (d); see also 38 C.F.R. § 3.102. The competent and probative evidence confirms 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. K. Conner 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.