BVA9508342 
DOCKET NO.  93-16 684     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts

THE ISSUE

Whether the veteran is competent for Department of Veterans
Affairs purposes.

REPRESENTATION

Appellant represented by: Massachusetts Department of
Veterans Service

WITNESSES AT HEARING ON APPEAL

Appellant and his wife

ATTORNEY FOR THE BOARD

Nadine W. Benjamin,  Counsel

INTRODUCTION

The veteran served on active duty from July 1952 to July 1956.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a September 1992 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Boston,
Massachusetts.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he is not incompetent and is able to
handle his own affairs.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the evidence is at least in equipoise and thus
supports a finding that the veteran is competent for VA purposes.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the RO.

2.  The veteran receives VA disability pension benefits for non
service-connected schizophrenia, rated as 70 percent disabling,
and hypertension, rated as 10 percent disabling.

3.  The evidence does not clearly show that the veteran lacks the
mental capacity to contract or to manage his own affairs,
including disbursement of funds without limitation.

CONCLUSION OF LAW

The veteran is competent for VA purposes.  38 U.S.C.A. § 5107
(West 1991); 38 C.F.R. § 3.353 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran's claim is well grounded within the meaning of 38
U.S.C.A. § 5107 (West 1991) in that he has presented a claim
which is plausible.  All relevant facts have been properly
developed, and no further assistance to the veteran is required
to comply with the duty to assist mandated by 38 U.S.C.A. § 5107
(West 1991).

The veteran argues that he should not be deemed incompetent to
handle VA funds.  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 or her own affairs, including
disbursement of funds without limitation.  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.
Where there is doubt as to whether the beneficiary is capable of
administering his or her funds such doubt will be resolved in
favor of competency.  38 C.F.R. § 3.353 (1994).

A review of the record reveals that in October 1987, VA received
a letter from a Housing Authority manager, who reported that the
veteran had not paid his rent for 3 months and that an eviction
notice had been served on him.  It was also reported that the
veteran had been committed to Danvers State Hospital.  In June
1988, a VA field examination was conducted.  It was reported that
the veteran was no longer a patient at Danvers State Hospital;
however, the examiner spoke with several staff members there and
it was reported that the issue of competency was never raised.
It was noted that the veteran had been hospitalized for 3 months
and had handled his own funds.  It was stated that there was
never a question in anyone's mind concerning the competency of
the veteran.  The field examiner also visited a VA facility where
the veteran had been hospitalized in May 1988.  It was noted that
a mental status report completed at that facility showed that the
veteran was well oriented and showed fair to good judgment; no
thought disorder was found.  A review of the hospital records
showed no notation that the veteran was considered incompetent.

The VA field examiner contacted the veteran in June 1988 at his
residence.  It was noted that he appeared oriented in all spheres
and was able to answer questions in a rational and intelligent
manner.  The veteran reported that when he had lived at an
apartment complex, he had withheld his rent due to disputes over
the condition of his apartment.  He currently lived with his
daughter in a single family home, and he paid rent to her.  He
reported that he had not had any recent problems with alcohol.
He stated that VA benefits were his only source of income.  It
was the field examiner's opinion that the veteran was competent.

In a May 1992 VA progress note, it was reported that the veteran
had exercised poor judgment in handling his money.  It was stated
that the veteran overspent and that his wife managed his funds,
and had to assume responsibility for paying his debts.  It was
also stated that as long as the veteran had custody of his funds,
he was less likely to comply with recommendations that he live in
a sheltered and structured environment.  It was concluded that
therefore, the veteran was incompetent to handle funds.

In July 1993, the veteran and his wife appeared at a hearing
before a Member of the Board in Boston, Massachusetts.  The
veteran testified that he had been living at rooming houses since
his discharge from hospitalization and had been paying his rent,
telephone and electric bills on time every month, and that he had
no problem with spending.  He stated that he lived alone.  The
veteran's wife reported that she saw the veteran almost every day
and that she was intimately familiar with his financial affairs.
She testified that she had not observed any problems that the
veteran had in managing his funds.  She said that over the past
several years, the veteran had been able to accumulate funds and
to spend them wisely, and that she had not noticed any problems
with his spending habits over the past year or so.  She stated
that the only time that she managed his money was when he was
hospitalized.  She testified that she had no reservations about
the veteran being able to handle his own funds.  The veteran's
wife reported that the veteran never had to borrow money from
her, and that he paid his bills and rent first when he got his
check.  The veteran stated that he did not owe money to anyone.
A complete transcript is of record.

After a review of the entire record, the Board finds that it does
not support a finding that the veteran's mental capacity is so
impaired as to render him incompetent to handle his own affairs.
The Board has reviewed the evidence, and notes that there is an
opinion by a VA physician that the veteran is incompetent.  This
opinion was offered on a progress note which provided little
clinical basis for that conclusion.  This is the only evidence in
the file which questions the veteran's competency.  The probative
value of medical opinion evidence is based on the medical
expert's personal examination of the patient, the physician's
knowledge and skill in analyzing the data, and the medical
conclusion that the physician reaches.  As is true with any piece
of evidence, the credibility and weight to be attached to these
opinions are within the province of the Board.  Guerrieri v.
Brown, 4 Vet.App. 467, 470-71 (1993).  The Board also notes that
there are no records of hospitalization or frequent treatment
which would tend to support a finding of incompetency.

There is also evidence that the veteran is currently competent,
specifically, the testimony of the veteran and his wife.  It is
the duty of the Board as the fact-finder to determine credibility
of the testimony and other lay evidence. Culver v. Derwinski,
3 Vet.App. 292, 297 (1992).  Both the veteran and his wife have
testified that he is able to manage his affairs competently.  He
has reported that he owes no money and that his bills are paid on
time.  This is corroborated by the veteran's wife.  The Board
finds the testimony of the veteran and his wife presented in July
1993 to be quite credible and persuasive concerning the
competency of the veteran, and the Board further finds that the
clinical evidence of record is not sufficient to support a
finding that the veteran lacks the mental capability to
administer his own funds.  Under the rather demanding criteria of
38 C.F.R. § 3.353(d) (1992), when there is doubt as to whether
the veteran is capable of administering his funds, the doubt will
be resolved in his favor.  Furthermore, under 38 U.S.C.A. § 5107
(West 1991), when the positive and negative evidence is in
equipoise, the veteran is to be afforded the benefit of the
doubt.  Based on the foregoing, the Board resolves the doubt in
favor of competency and concludes that the veteran is competent
to handle VA funds.

ORDER

The veteran is considered competent for VA purposes, and the
appeal is granted.

          ROBERT E. SULLIVAN
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit,

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or benefits, sought on appeal is appealable to the United States
Court of Veterans Appeals within 120 days from the date of
mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was
filed with the agency of original jurisdiction on or after
November 18, 1988.  Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988).  The date which appears on the face of
this decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans' Appeals.