ptsd I Won & Lost On .... A & A ?

[Magoo_Mr.]

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It has been a while since I have been here, but some of you "old timers" will remember me.

I won my A&A SMC claim with the VA ... HOWEVER ... because they gave me A&A ... the VA has already started proceedings to possibly consider me "INCOMPETENT". ..... YIKES .....

This is the weirdest thing that I have ever seen.

For those of you who do not know me ... I will share the following.

100% P&T, PTSD (combat in RVN)

40% Back Injury (compression fractures) (combat in RVN)

10% Other (combat in RVN)

All Above Ratings are Schedular.

I do have a GIANT ANXIETY problem (PTSD based anxiety) in dealing with any governmental institution (ie. DVA & SSA)and the VA has labeled that as possibly being ... "INCOMPETENTCY".

I have looked everywhere for the exact ... "VA Defination of Incompetency" ... and cannot find it anywhere. I have found court cases ... but no ... "EXACT DEFINATION of INCOMPETENCY AS DEFINED BY DVA".

I have helped many veterans with their claims and have never run into this "INCOMPETENCY" issue before.

Does anyone have any experience with this issue or know the DVAs defination of incompetency ?????

Magoo aka Bill

PS ... They hinted that I could not get A&A without being incompetent .... this cannot be true ??

.

Edited October 7, 2008 by Magoo_Mr.

[Wings]

Hi Magoo ;-) Good to see you here ;-)

Did the VA schedule a new C&P Exam for the proposed incompetency? Seems to me, the VA has been playing that card a lot these past couple of years. I don't have any hard core, cut and dry answers today, but I would think an IME from your treating shrink type person would be in your best interest. If your A&A award rested upon your mental disorder, did the evidence of record suggest a cognative impairment? Do you have a history of not being able to manage your financial or legal affairs? What's your GAF Score been of late? Hope others will contribute more, we have your back.

~Wings

[carlie]

Hi Magoo,

Great to see you post and also the grant of A&A is wonderful.

This is some good info I borrowed from elsewhere, hope it's helpful.

"If there is no court determined incompetency, VA must make a formal finding of incompetency before any action can be taken to appoint a fiduciary. VA cannot do this until it has been determined that the person is actually entitled to monetary benefits. After benefit entitlement has been found to exist, VA must "propose" incompetency. In other words, they must write a letter to the person deemed to be incompetent and notify him/her of this proposed action. This is the part that VA doesn't have to do in the case of a prior court finding of incompetency since due process would have already been given by the court. Otherwise, the law requires that VA undertake this step.After complying with this due process VA can then make a formal finding of incompetency, after which they can go about the business of appointing a fiduciary. While this may seem like something that should be relatively simple to you, it isn't. The laws and regulations are very strict in matters such as this, and violations of due process are considered to be very serious. "

************************************************************

ALSO:

§ 3.353 Determinations of incompetency and competency.

(a) Definition of mental incompetency. 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.

(b) Authority.

(1) 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 §13.56 of this chapter, disbursement of benefits. Such determinations are final and binding on field stations for these purposes.

(2) Where the beneficiary is rated incompetent, the Veterans Service Center Manager will develop information as to the beneficiary's social, economic and industrial adjustment; appoint (or recommend appointment of) a fiduciary as provided in §13.55 of this chapter; select a method of disbursing payment as provided in §13.56 of this chapter, or in the case of a married beneficiary, appoint the beneficiary's spouse to receive payments as provided in §13.57 of this chapter; and authorize disbursement of the benefit.

(3) If in the course of fulfilling the responsibilities assigned in paragraph (b)(2) the Veterans Service Center Manager develops evidence indicating that the beneficiary may be capable of administering the funds payable without limitation, he or she will refer that evidence to the rating agency with a statement as to his or her findings. The rating agency will consider this evidence, together with all other evidence of record, to determine whether its prior determination of incompetency should remain in effect. Reexamination may be requested as provided in §3.327(a) if necessary to properly evaluate the beneficiary's mental capacity to contract or manage his or her own affairs.

© Medical opinion. 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.

(d) Presumption in favor of competency. 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 (see §3.102 on reasonable doubt).

(e) Due process. 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 §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.

(Authority: 38 U.S.C. 501(a))

[36 FR 19020, Sept. 25, 1971, and 40 FR 1241, Jan. 7, 1975, as amended at 42 FR 2069, Jan. 10, 1977; 58 FR 37856, July 14, 1993; 60 FR 55792, Nov. 3, 1995; 66 FR 48560, Sept. 21, 2001; 67 FR 46868, July 17, 2002; 68 FR 34542, June 10, 2003]

[Berta]

Bill- Welcome back here and Congrats!!!!

You can fight any proposed incompetency idea on VA's part-

Do you have any private doctor (shrink) who can give you a statement that you are competent?

Do you have a personal lawyer who has had dealings with you and might be able to do this?

Do you have a budget and keep all of the proof that you pay your bills-taxes and utilities on time?

Do you have any money in savings or investments?

Do you get SSA for disability and has SSA considered you competent enough not to make you get a SSA payee?

I dont know exactly what they letter said -did it give you right to a hearing? Would it be feasible for you to travel to a hearing or even an informal conference?

Is this a DRO proposal?

Incompetency for VA purposes is a protection for any vetr who really needs a payee to handle their funds.

I dont see how anyone who travels the long road of VA Bull crap, legalise, and the claims process can really be incompetent-in most cases-

but if we dont have PTSD when we start out the VA might give it to us.

Apparently they owe you quite a bit of retro- and this incompetency stuff will hold up release of that.

"I do have a GIANT ANXIETY problem (PTSD based anxiety) in dealing with any governmental institution (ie. DVA & SSA)and the VA has labeled that as possibly being ... "INCOMPETENTCY""

Where are Our rights to declare VA federal GS 12-18 employees as incompetent!

The backlog of remands reflects that many of them simply cannot even read.

[Wings]

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I'm going to e-mail this post back to Magoo. He may have lost his post, and didn't know where to find it. Hadit forums are a very busy place! ~Wings

[Stretch]

Good to see you Magoo. Congrats on A&A. Seems that my C&P said I was competent to pay bills. Could this statement be in you original C&P?