Citation Nr: 0000808 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 98-03 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the veteran is competent for Department of Veterans Affairs (VA) purposes according to the provisions of 38 C.F.R. § 3.353. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Crowley, Associate Counsel INTRODUCTION The veteran had active military service from December 1967 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the VA Regional Office (RO) in St. Petersburg, Florida, which found that the veteran was mentally incompetent for VA purposes. REMAND For VA purposes, a mentally incompetent person is one who because of injury or disease lacks the mental capacity to contract or to manage his affairs, including the disbursement of funds without limitation. 38 U.S.C.A. § 3.353(a) (1999). There is a presumption in favor of competency. 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) (1999); see also 38 C.F.R. § 3.102 (1999). A medical opinion is required for the rating agency to make a determination of incompetency. Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, the rating agency will not made a determination of incompetency without a definite expression regarding the question by the responsible medical authorities. 38 C.F.R. § 3.353(c) (1999). 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. Id. In brief, according to our review of the veteran's claims folder, we note that he is in apparent receipt of "supervised direct pay" of his current monthly benefit payments, but that he has been determined incompetent to receive a retroactive lump sum payment of past due benefits due to an alleged inability to manage his personal finances. Additional development of the evidence is necessary in this case before a decision on the merits of the veteran's claim can be made. Potentially relevant medical records have not been obtained by the RO. First, it is noted that the February 1998 VA Field Examination indicates that an additional VA Field Examination was to be conducted in August 1998, however, from our review of the record, we are unable to determine whether such action has been completed. Second, we also point out that the examiner at the veteran's November 1998 VA medical examination (VAME) indicated that although the veteran was, in the examiner's opinion, incompetent to manage his financial affairs, that a future examination should have been performed in November 1999, in order to ascertain whether there was improvement in the veteran's condition. Finally, we also note that VA Form 27-555 "Certificate of Legal Capacity to Receive and Disburse Benefits", dated December 1998, is of record, and apparently shows that the veteran's retroactive benefits were to be released to the payee indicated on that form. We are of the opinion that further clarification is necessary prior to further appellate consideration. Specifically, the reports of the above mentioned examinations would be particularly helpful. We note in this regard that a medical opinion that the veteran is incompetent must be based upon "all evidence of record." See 38 C.F.R. § 3.353(c) (1999). Under these circumstances, in order to obtain a more accurate picture of the veteran's competency status, he should be afforded the appropriate VA examinations on remand, if not already completed, which includes review of the claims file by the examiner prior to rendering his or her findings (including any additional records obtained from SSA and/or other sources). The examiner is specifically requested to provide an opinion as to whether the veteran has the mental capacity to contract or to manage his affairs, including the disbursement of funds without limitation. Therefore, this case is REMANDED for the following: 1. The RO should request that the veteran provide a list of those private and VA providers who have treated him for his psychiatric disorder since 1997. If any request for private treatment records is not successful, the RO should inform the veteran and his representative of the negative outcome, and afford them an opportunity to obtain and submit the records, in keeping with the veteran's responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159(c)(1999). With respect to the VA medical facilities, all records maintained that pertain to the veteran are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. Specifically, the RO should associate the VA Field Examination report of August 1998, and VA Mental Examination report of November 1999 with the claims folder. 2. If the above examinations were not conducted, the RO should afford the veteran the appropriate VA medical examinations to determine competency. The claims folder and a copy of this remand are to be made available to the examiner prior to the examination, and the examiner is asked to indicate that he or she has reviewed the claims folder. All tests deemed necessary by the examiner are to be performed. 3. After examining the veteran, the examiner should render an opinion as to whether the veteran has the mental capacity to contract or to manage his affairs, including the disbursement of funds without limitation. The examiner should cite the objective medical findings leading to his conclusions. If further testing or examination by other specialists is determined to be warranted in order to evaluate the condition(s) at issue, such testing or examination is to be accomplished. 4. If the above VA Field Examination was not conducted, the RO should then also schedule a VA Field examination, in order to determine whether the veteran has the mental capacity to contract or to manage his affairs, including the disbursement of funds without limitation. 5. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination report does not include adequate responses to the specific opinions requested, the report must be returned to the physician for corrective action. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 6. The RO should then re-adjudicate the veteran's claim, with application of all appropriate laws and regulations (including 38 C.F.R. § 3.353(a)-(e))and consideration of any additional information obtained as a result of this remand, including the report of the VA examination. The RO should consider carefully and with heightened mindfulness the benefit of the doubt rule, if applicable. 38 U.S.C.A. § 5107(b). If the evidence is not in equipoise the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). Then, if the decision with respect to the claim remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. Then, the claims folder should be returned to the Board for further appellate consideration. The veteran need take no action until he is so informed. The purposes of this REMAND are to obtain additional information and to comply with all due process considerations. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). M. W. GREENSTREET Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).