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Little Help On Competency Issue


carlie

Question

Hi to all - been so busy I haven't been around for a while.

Im helping out another vet that has brought me his records, I've actually seen them so I feel everything with him is legit.

His VA letter of 1992 states, " You are considered to be 100 percent permanently and totally disabled for Department of Veterans Affairs purposes. You are no longer subject to routine future examinations to determine if your condition has improved ".

His VA disability is listed as : PSYCHOSIS. UNDIFF- 100 % (SC).

He at that time was declared to be incompetant to handle his own funds

so his mother was made his payee, a few years after that his mother passed away and his sister became his payee. A bit over one year ago his sister told him she was too busy to continue handling his financial affairs and wanted to be released from this responsibility. VA appointed a new payee of VA's choice.

The veteran desires to regain Competency to handle his own funds.

He has a letter dated May 12, 2006 from his VA Psychiatrist stating.

" He has been treating the veteran for schizoaffective disorder (depressive type) and alcohol dependence (latter in partial remission). His symptoms have remained fairly wellcontrolled since 2005, and by all accounts he is compliant with his treatment. Feeling more and more confident and capable, he is requesting control of his VA compensation, and I concur. So far he has managed his allowances appropriately. Given his stability, willingness to control his monies, self-assessed ability to do so, and my observation that he is capable of managing his funds, I request that VA consider turning over control of his compensation to the veteran. I feel he is ready! The veteran understands that any mishandling of funds in the future can result in a payee being reappointed. "

He has already had a VA feild examination at his home from a VA rep that staed she would very much be in agreement for his restoration of competency.

I am studying M21-1 Dated 12/13/2005 under rules for Determining Restored Competency :

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

4. Changing Competency Status

Introduction This topic contains information about changing competency status, including

• proposing a loss of competency

• determining restored competency

• limitations after competency is restored

• examinations required before restoring competency, and

• obtaining field examinations.

Change Date December 13, 2005

a. Proposing a Loss of Competency Issue a rating proposing a change in competency status if the evidence of record will result in a change in competency status from competent to incompetent.

This proposal may be included in a rating addressing other issues, such as evaluation of a mental disorder.

Reference: For more information on procedures to follow upon receipt of evidence of incompetency, see M21-1MR, Part III, Subpart v, 9.B (TBD) or M21-1, Part IV, 17.15.

b. Determining Restored Competency In any case in which the beneficiary has been rated incompetent, take necessary development and rating action to determine whether competency has been regained if so indicated in a

• hospital summary

• report of release to or discharge from non-bed care, or

• report of other material change in condition.

c. Limitations After Competency Is Restored Restored competency does not of itself

warrant a reduction in the evaluation of a veteran’s disability, or

• establish that a parent or surviving spouse is no longer entitled to Aid and Attendance (A&A).

My question to the forum is:

1) In applying for Restoration of Competency will this automatically allow

VA to review his current disability evaluation and P&T status?

2) Are there any rules or regs. I should be aware of to help ensure his evaluation

does not come under review ?

I have a BVA Travel Board Hearing at Bay Pines RO this Friday and am a busy little bee preparing for this. Wish me luck, Im so tired of the fight and don't have much left in me.

TERRY HIGGINS -- If you read this post please call me ASAP, again I've lost your phone number.

Best to Carlie.

PS.

I just found out he falls under

38 CFR - 3.951 (:mellow:, 20 year protection reg. for his 100% SC

38 USC - 110 - 20 year protection reg. for his 100% SC

1992 is when his P&T was awarded.

Edited by carlie
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Guest DON20906

The veteran appears to be schedular 100% P&T and not individually unemployable where his actual disability rating is less than 100% but he is paid at the 100% rate. If that is the case then the 5/10/20 year rules for reduction will apply.

From 0-5 years, VA can reduce a veterans rating pretty much at will, based on the most current C&P exam.

After 5 years, any rating evaluation that has “stabilized,” that is, continued for a long period at the same level whether it is at the 10 percent or 100 percent level, may not be reduced unless all the evidence of record shows sustained improvement in the disability. Sustained improvement has been defined as two C&P exams, 6 months apart, where the veteran shows improvement in exam #2 over exam #1.

After ten years of the veterans continuous receipt of service-connected disability or death benefits, the VA cannot sever the benefits (that is, terminate service-connected status) unless there was fraud involved in obtaining the rating or the VA discovers that the veteran did not have the required length or character of service. The sustained improvement rule applies.

If a disability has been continuously rated at or above a particular rating level for twenty or more years, the VA cannot reduce the rating below that level unless it discovers that the rating was based on fraud. For example, if a veteran is granted compensation based upon an original rating of 30 percent and for the next twenty years the rating varies between 30 percent and 100 percent, the rating cannot thereafter be reduced below 30 percent in the absence of fraud.

A determination of restoration of competency may effect the veterans rating, subject to the above rules. Since he has been 100% for 14 years, I wouldn't expect VA to mess with his rating; there are plenty of vets 100% for psych issues out there who haven't been adjudicated incompetent. Anything's possible, however.

Hi to all - been so busy I haven't been around for a while.

Im helping out another vet that has brought me his records, I've actually seen them so I feel everything with him is legit.

His VA letter of 1992 states, " You are considered to be 100 percent permanently and totally disabled for Department of Veterans Affairs purposes. You are no longer subject to routine future examinations to determine if your condition has improved ".

His VA disability is listed as : PSTCHOSIS. UNDIFF- 100 % (SC).

He at that time was declared to be incompetant to handle his own funds

so his mother was made his payee, a few years after that his mother passed away and his sister became his payee. A bit over one year ago his sister told him she was too busy to continue handling his financial affairs and wanted to be released from this responsibility. VA appointed a new payee of VA's choice.

The veteran desires to regain Competency to handle his own funds.

He has a letter dated May 12, 2006 from his VA Psychiatrist stating.

" He has been treating the veteran for schizoaffective disorder (depressive type) and alcohol dependence (latter in partial remission). His symptoms have remained fairly wellcontrolled since 2005, and by all accounts he is compliant with his treatment. Feeling more and more confident and capable, he is requesting control of his VA compensation, and I concur. So far he has managed his allowances appropriately. Given his stability, willingness to control his monies, self-assessed ability to do so, and my observation that he is capable of managing his funds, I request that VA consider turning over control of his compensation to the veteran. I feel he is ready! The veteran understands that any mishandling of funds in the future can result in a payee being reappointed. "

He has already had a VA feild examination at his home from a VA rep that staed she would very much be in agreement for his restoration of competency.

I am studying M21-1 Dated 12/13/2005 under rules for Determining Restored Competency :

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

4. Changing Competency Status

Introduction This topic contains information about changing competency status, including

• proposing a loss of competency

• determining restored competency

• limitations after competency is restored

• examinations required before restoring competency, and

• obtaining field examinations.

Change Date December 13, 2005

a. Proposing a Loss of Competency Issue a rating proposing a change in competency status if the evidence of record will result in a change in competency status from competent to incompetent.

This proposal may be included in a rating addressing other issues, such as evaluation of a mental disorder.

Reference: For more information on procedures to follow upon receipt of evidence of incompetency, see M21-1MR, Part III, Subpart v, 9.B (TBD) or M21-1, Part IV, 17.15.

b. Determining Restored Competency In any case in which the beneficiary has been rated incompetent, take necessary development and rating action to determine whether competency has been regained if so indicated in a

• hospital summary

• report of release to or discharge from non-bed care, or

• report of other material change in condition.

c. Limitations After Competency Is Restored Restored competency does not of itself

warrant a reduction in the evaluation of a veteran’s disability, or

• establish that a parent or surviving spouse is no longer entitled to Aid and Attendance (A&A).

My question to the forum is:

1) In applying for Restoration of Competency will this automatically allow

VA to review his current disability evaluation and P&T status?

2) Are there any rules or regs. I should be aware of to help ensure his evaluation

does not come under review ?

I have a BVA Travel Board Hearing at Bay Pines RO this Friday and am a busy little bee preparing for this. Wish me luck, Im so tired of the fight and don't have much left in me.

TERRY HIGGINS -- If you read this post please call me ASAP, again I've lost your phone number.

Best to Carlie.

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DON,

Thanks for the response.

This is the request I have prepared for him to submit.

To: Department of Veterans Affairs

Regional Office

XXXXXXXXXXXXXX

In Regards to Veteran :

Mr. XXX - CSS XXX-XX-XXXX

May 25, 2006

To Whom It May Concern,

ISSUE: REQUEST FOR RESTORATION OF COMPENTENCY

I have been a 100% service connected disabled veteran for over twenty consecutive years.

As of August 20, 1992 I was granted Permanent and Totally disabled for Department of Veterans Affairs purposes.

At this time I am submitting my request for Restoration of Competency. I feel I'm now capable to manage my own affairs, to including disbursement of funds from my Veterans Disability Compensation, without limitation.

I am submitting as evidence in support of my request for Restoration of Competency:

1) Letter Dated MayXX 2006, from my VA Psychiatrist XXXXXXXX MD; Staff Psychiatrist

In Reply Refer To: XXXXX -ph. XXX-XXXX extension XXXX.

2) I have had a recent home visitation from:

United States Department of Veterans Affairs

Field Examiner/ Investigator: Ms.XXXX from the XXXXXXXXX Regional Office.

Telephone: 1-800-827-1000 extension XXXXX

At the conclusion of our meeting Ms.Kidd informed that if I were to request Restoration of Competency she would be fully in favor of the request being granted.

I feel that with the evidence I'm presenting at this time my request should be granted per the following rules and regulations:

38 CFR

§ 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.

(:mellow: 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.

© 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.

M21-1MR

Part III Subpart iv Chapter 8 Section A

4. Changing Competency Status

b. Determining Restored Competency

In any case in which the beneficiary has been rated incompetent, take necessary development and rating action to determine whether competency has been regained if so indicated in a

• hospital summary

• report of release to or discharge from non-bed care, or

• report of other material change in condition.

c. Limitations After Competency Is Restored Restored competency does not of itself

• warrant a reduction in the evaluation of a veteran’s disability, or

• establish that a parent or surviving spouse is no longer entitled to Aid and Attendance (A&A).

d.

Examinations Required Before Restoring Competency A current psychiatric examination and a field examination are required before competency may be restored by a rating decision.

The psychiatric examination may be a report of hospitalization for the psychiatric disability affecting competency.

e. Obtaining Field Examinations Prior to a rating activity determination of restored competency, obtain a field examination to confirm that the beneficiary will be able to handle all available or due funds.

Title 38 CFR: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Protection

§ 3.951 Preservation of disability ratings.

(B) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation.

(Authority: 38 U.S.C. 110)

U.S.C. Code :

TITLE 38--VETERANS' BENEFITS

PART I--GENERAL PROVISIONS

CHAPTER 1--GENERAL

Sec. 110. Preservation of disability ratings

A rating of total disability or permanent total disability which has

been made for compensation, pension, or insurance purposes under laws

administered by the Secretary, and which has been continuously in force

for twenty or more years, shall not be reduced thereafter, except upon a

showing that such rating was based on fraud. A disability which has been

continuously rated at or above evaluation for twenty or more years for

compensation purposes under laws administered by the Secretary shall not

thereafter be rated at less than such evaluation, except upon a showing

that such rating was based on fraud. The mentioned period shall be

computed from the date determined by the Secretary as the date on which

the status commenced for rating purposes.

Enclosed is a copy of the letter in support of my request, from my Psychiatrist.

Ms. XXXXX stated VA may contact her in regards to my field examination, home visit.

Please address correspondence to my home address listed above.

Thanking you in advance for your time and consideration.

Sincerely,

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Guest DON20906

You're welcome. Great letter!

DON,

Thanks for the response.

This is the request I have prepared for him to submit.

To: Department of Veterans Affairs

Regional Office

XXXXXXXXXXXXXX

In Regards to Veteran :

Mr. XXX - CSS XXX-XX-XXXX

May 25, 2006

To Whom It May Concern,

ISSUE: REQUEST FOR RESTORATION OF COMPENTENCY

I have been a 100% service connected disabled veteran for over twenty consecutive years.

As of August 20, 1992 I was granted Permanent and Totally disabled for Department of Veterans Affairs purposes.

At this time I am submitting my request for Restoration of Competency. I feel I'm now capable to manage my own affairs, to including disbursement of funds from my Veterans Disability Compensation, without limitation.

I am submitting as evidence in support of my request for Restoration of Competency:

1) Letter Dated MayXX 2006, from my VA Psychiatrist XXXXXXXX MD; Staff Psychiatrist

In Reply Refer To: XXXXX -ph. XXX-XXXX extension XXXX.

2) I have had a recent home visitation from:

United States Department of Veterans Affairs

Field Examiner/ Investigator: Ms.XXXX from the XXXXXXXXX Regional Office.

Telephone: 1-800-827-1000 extension XXXXX

At the conclusion of our meeting Ms.Kidd informed that if I were to request Restoration of Competency she would be fully in favor of the request being granted.

I feel that with the evidence I'm presenting at this time my request should be granted per the following rules and regulations:

38 CFR

§ 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.

(:mellow: 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.

© 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.

M21-1MR

Part III Subpart iv Chapter 8 Section A

4. Changing Competency Status

b. Determining Restored Competency

In any case in which the beneficiary has been rated incompetent, take necessary development and rating action to determine whether competency has been regained if so indicated in a

• hospital summary

• report of release to or discharge from non-bed care, or

• report of other material change in condition.

c. Limitations After Competency Is Restored Restored competency does not of itself

• warrant a reduction in the evaluation of a veteran’s disability, or

• establish that a parent or surviving spouse is no longer entitled to Aid and Attendance (A&A).

d.

Examinations Required Before Restoring Competency A current psychiatric examination and a field examination are required before competency may be restored by a rating decision.

The psychiatric examination may be a report of hospitalization for the psychiatric disability affecting competency.

e. Obtaining Field Examinations Prior to a rating activity determination of restored competency, obtain a field examination to confirm that the beneficiary will be able to handle all available or due funds.

Title 38 CFR: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Protection

§ 3.951 Preservation of disability ratings.

(B) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation.

(Authority: 38 U.S.C. 110)

U.S.C. Code :

TITLE 38--VETERANS' BENEFITS

PART I--GENERAL PROVISIONS

CHAPTER 1--GENERAL

Sec. 110. Preservation of disability ratings

A rating of total disability or permanent total disability which has

been made for compensation, pension, or insurance purposes under laws

administered by the Secretary, and which has been continuously in force

for twenty or more years, shall not be reduced thereafter, except upon a

showing that such rating was based on fraud. A disability which has been

continuously rated at or above evaluation for twenty or more years for

compensation purposes under laws administered by the Secretary shall not

thereafter be rated at less than such evaluation, except upon a showing

that such rating was based on fraud. The mentioned period shall be

computed from the date determined by the Secretary as the date on which

the status commenced for rating purposes.

Enclosed is a copy of the letter in support of my request, from my Psychiatrist.

Ms. XXXXX stated VA may contact her in regards to my field examination, home visit.

Please address correspondence to my home address listed above.

Thanking you in advance for your time and consideration.

Sincerely,

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I agree with Don -GREAT Carlie!

I am glad you mentioned early on as to the 20 years part of SC disability-

this way they cannot attempt to mess with him- like saying since he is 'competent' he might not be 100% P & T anymore-

You took away some ammo from them right from the git go- great job-great example if this comes up again for another vet in same position.

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