ptsd I Feel So Lost.....incompetent?

[vistagirl81]

My husband got his letter today... 50% PTSD with depression and 10% for tinnitis, 0% headaches and 0% hemorrhoids.... i will appeal the last 2, but they have stated that he will be Declared Incompetent?? why is that all they asked him is who did the finances and he said I did... yes i do, he was deployed more that half our marriage... he just got back 7 mo ago.... i told his psyc. he was not.. he is just very depressed and losses his memory at times ect.... we are trying to work on that....And now we are getting a letter saying they are withholding his money because he was given seperation pay when he left, 9000,he was given 6000, was not the seperation pay for the 8 years he served in the military??Why do they want that back, it is not as though he was medically retired or medically discharged, can someone please tell me about all this....and why is he 50% if he is incompetent.... i have never seen anything like this.. not even a year ago he was competent enough to get deployed, comes home and now he is not copetent enough to handle his own finances.

[vistagirl81]

it is alright, my husband was not discharged for a medical reason.. he hit his Higher Tenure... he did not get promoted to E5 after 8 yrs so he had to get out, it has nothing to do with medical reasons...

[sharon]

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Ratings for Special Purposes

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§ 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.

(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 ((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.

[vistagirl81]

They did not file a TDIU, the MH dr said that he could go to work after Volc Rehab..They said "We propose to rate you incompetent for VA purposes. A fiduciary may be appointed to help you manage your VA benefits.

"To avoid duplication of benefits resulting from the special separation benefits program, section 1174a(g) makes the provisions of 10 U.S.C. 1174(h)(2) applicable to special separation benefits. Section 1174(h)(2) states that a member who has received separation pay based on service in the Armed Forces shall not be deprived, by reason of his receipt of such pay, of any disability compensation to which he is entitled under the laws administered by VA, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay received. In Public Law 104-201, section 653,"

What i am understanding from what Sharon wrote was he will have to pay the money back. He recieved his seperation pay for time in service and he is getting compensation for the injuries he recieved.. how are they duplicated, they are different things, or am i not understanding it ?

[sharon]

Maybe this will help.

38 C.F.R. § 3.700 General.

Title 38 - Pensions, Bonuses, and Veterans' Relief

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Concurrent Benefits and Elections

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§ 3.700 General.

Not more than one award of pension, compensation, or emergency officers', regular or reserve retirement pay will be made concurrently to any person based on his or her own service except as provided in §3.803 relating to naval pension and §3.750© relating to waiver of retirement pay. Not more than one award of pension, compensation, or dependency and indemnity compensation may be made concurrently to a dependent on account of more than one period of service of a veteran.

(Authority: 38 U.S.C. 5304(a)) (a) Veterans—(1) Active service pay. (i) Pension, compensation, or retirement pay on account of his or her own service will not be paid to any person for any period for which he or she receives active service pay.

(Authority: 38 U.S.C. 5304©) (ii) Time spent by members of the ROTC in drills as part of their activities as members of the corps is not active service.

(iii) Reservists may waive their pension, compensation, or retirement pay for periods of field training, instruction, other duty or drills. A waiver may include prospective periods and contain a right of recoupment for the days for which the reservists did not receive payment for duty by reason of failure to report for duty.

(2) Lump-sum readjustment pay. (i) Where entitlement to disability compensation was established prior to September 15, 1981, a veteran who has received a lump-sum readjustment payment under former 10 U.S.C. 687 (as in effect on September 14, 1981) may receive disability compensation for disability incurred in or aggravated by service prior to the date of receipt of lump-sum readjustment payment subject to deduction of an amount equal to 75 percent of the amount received as readjustment payment.

(Authority: 38 U.S.C. 501) (ii) Readjustment pay authorized under former 10 U.S.C. 3814(a) is not subject to recoupment through withholding of disability compensation, entitlement to which was established prior to September 15, 1981.

(Authority: 38 U.S.C. 501) (iii) Where entitlement to disability compensation was established on or after September 15, 1981, a veteran who has received a lump-sum readjustment payment may receive disability compensation for disability incurred in or aggravated by service prior to the date of receipt of the lump-sum readjustment payment, subject to recoupment of the readjustment payment. Where payment of readjustment pay was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of readjustment pay. Where payment of readjustment pay was made after September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of readjustment pay less the amount of Federal income tax withheld from such pay.

(Authority: 10 U.S.C. 1174(h)(2) and 1212©) (iv) The receipt of readjustment pay does not affect the payment of disability compensation based on a subsequent period of service. Compensation payable for service-connected disability incurred or aggravated in a subsequent period of service will not be reduced for the purpose of offsetting readjustment pay based on a prior period of service.

(Authority: 10 U.S.C. 1174(h)(2)) (3) Severance pay. Where the disability or disabilities found to be service-connected are the same as those upon which disability severance pay is granted, or where entitlement to disability compensation was established on or after September 15, 1981, an award of compensation will be made subject to recoupment of the disability severance pay. Prior to the initial determination of the degree of disability recoupment will be at the full monthly compensation rate payable for the disability or disabilities for which severance pay was granted. Following initial determination of the degree of disability recoupment shall not be at a monthly rate in excess of the monthly compensation payable for that degree of disability. For this purpose the term “initial determination of the degree of disability” means the first regular schedular compensable rating in accordance with the provisions of subpart B, part 4 of this chapter and does not mean a rating based in whole or in part on a need for hospitalization or a period of convalescense. Where entitlement to disability compensation was established prior to September 15, 1981, compensation payable for service-connected disability other than the disability for which disability severance pay was granted will not be reduced for the purpose of recouping disability severance pay. Where entitlement to disability compensation was established on or after September 15, 1981, a veteran may receive disability compensation for disability incurred or aggravated by service prior to the date of receipt of the severance pay, but VA must recoup from that disability compensation an amount equal to the severance pay. Where payment of severance pay was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of the severance pay. Where payment of severance pay was made after September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of the severance pay less the amount of Federal income tax withheld from such pay.

(Authority: 10 U.S.C. 1174(h)(2) and 1212©) (4) Improved pension. If a veteran is entitled to improved pension on the basis of the veteran's own service and is also entitled to pension under any pension program currently or previously in effect on the basis of any other person's service, the Department of Veterans Affairs shall pay the veteran only the greater benefit.

(Authority: 38 U.S.C. 1521(i)) (5) Separation pay and special separation benefits. (i) Where entitlement to disability compensation was established on or after September 15, 1981, a veteran who has received separation pay may receive disability compensation for disability incurred in or aggravated by service prior to the date of receipt of separation pay subject to recoupment of the separation pay. Where payment of separation pay or special separation benefits under section 1174a was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of separation pay or special separation benefits. Where payment of separation pay or special separation benefits under section 1174a was made after September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of separation pay or special separation benefits less the amount of Federal income tax withheld from such pay.

(ii) The receipt of separation pay does not affect the payment of disability compensation based on a subsequent period of service. Compensation payable for service-connected disability incurred or aggravated in a subsequent period of service will not be reduced for the purpose of offsetting separation pay based on a prior period of service.

[vistagirl81]

I get it now, we will have to pay it back.

[vistagirl81]

Thank everyone for helping me and my husband its been a hard road... My Question now is, will we have to pay the money back on our own or are they going to take it out of his compensation backpay? My husband got denied for 2 claims back pain and knee pain... i know now that the va does not compensate "pain" should i file a new claim for Muscle spasms, and for patellofemoral pain syndrome( is an assesment the same as a diagnosis?)