Incompetency Issues

[Berta]

No single non -attorney veteran's advocate has done more for veteran's on this issue then Jim Strickland.

ANY veteran who anticipates a potential large retro on any MH issue could be faced with VA's proposal of incompetency---guaranteed to hold up the retro payment for many months as well as possibly end up having a VA appointed fiduciary and I already have posted Dept of Justice stuff here at hadit as to some of the crooks the VA appointed as vet's fiduciaries.Those vets will never recover the compensation they lost.

Jim sent me in email these links that are imperative for anyone awaiting a VA C & P for a MH issue or who has been sent a letter indicating VA is proposing incompetency. He makes very logical points here that we all need to be aware of:

http://www.jimstrickland912.com/C_and_P_Examinations.html

http://www.jimstrickland912.com/Fiduciary_Appointments.html

In part:

"When you are asked, "How are finances handled and bills paid around your house?, be aware that the wrong answer could start the fiduciary appointment process for you.

A simple reply like, "My wife handles my checkbook and pays the bills at my place." is a signal that says you are incompetent to handle your own finances."

and

"To most C & P examiners that means you can not handle your own finances. They will make a brief note, "Veteran is not competent to manage his finances."

Once that little remark is in your record, you have a world of problems coming your way.

You will then be notified that there is a "proposal" to appoint a fiduciary for you. The first contact may be by mail or by telephone.

VA will ask to set up a meeting with you in your residence. This meeting will be with a VA Field Agent (or examiner) who will ask you about your finances, do background checks on people in your home, perform credit rating checks and so on. He/she will tell you that as an incompetent veteran you can not have guns in your house and you will not have the right to purchase firearms."

(PS I had no idea VA does background checks for these issues on the vet- they should have done them on the felons they appointed as fiduciaries)

His links also remind us of the important Freeman Decision:

"

In 2011 there was a major decision by the CAVC that is beginning to help change things. That's usually called The Freeman Decision and you should read it now. This is a complex legal document but it will help to to develop your appeal."

The decision is here at hadit and it is of enormous importance for all of us as it specifically highlights our Due Process rights

[Berta]

"It's beginning to look like the VA is thinking mental problems, retro, incompetence are all in the same pot."

Chuck, you make many profound statements here-

and I totally agree with you and I even see a 'nexus' between all that and the new PTSD criteria that prohibits a PTSD diagnosis from an IMO doc.

The VA can refuse to diagnose PTSD under the new regs if they want and if they DO diagnose it and rate it-the next best way to stave off retro is what you stated here.

That part of the new PTSD criteria is being fought over in court.(the IMO BS)

I used to think I had VAOla paranoia over this stuff but it seems to have become almost a reality.

Also the new regs for PTSD give a "rater" the power to determine if the MOS is consistent with hostile actions etc.....

and that means a civilian or peacetime vet rater could easily misinterpret a valid stressor that is consistent with the new criteria.

[evandc]

JMHO, from talking with 100's of vets over twenty years. Best defense to avoid this INCOMPETENCY starts before you have the C & P. Why in the hell do vets think they cannot receive 100% or TDIU for PTSD etc. without trying to convince everyone they can't do anything for themselves? Many of you bring this on yourselves with this I don't want them to think I'm too smart or I can't get anything. This is total BS & I wish vets could get the word to tell C & P doctors I pay my bills, have checking account, have stocks, bonds, own my own house, cook, do the dishes etc.

OK now that I'm over that. Do have friends that have same problem. Advice to them is to attack. Write the letter stressing that you disagree with this incompetency ruling. Attach a letter from your shrink. In my friends case a letter from long time Vet Rep Shrink does the trick. I have seen this turn around in 60 days or less. In few cases the vet is really incompetent & I only pray that his wife or loved one is dedicated to the welfare of the veteran. I take this personally when they do this to vets I'm offended, because who the hell are they to take thirty minutes to decide his/her entire future.

Good Luck,

[carlie]

I think this is a type of witch hunt.

I think they want to get the word put out in the vets community's

that if you apply for SMC's like HB and A&A - and you are SC'd MH at 100 percent

they are going to do a proposal for incompetence and try to appoint a fiduciary.

IMO - FROM HERE ON OUT AT A C&P EXAM . . . OR EVEN YOUR PCP or THERAPIST

If you are able to handle your finances by your self then don't EVER even breathe

any words similar to:

my spouse - parent - friend - whatever . . .

pays the bills so I don't have to worry with / about those things

OR

my spouse - parent - friend - whatever . . .

helps me - verifies my math - makes sure I don't forget a bill - makes sure I don't get scammed, etc...

DO NOT SAY OR WRITE ANYTHING AT ALL LIKE THIS !

These people and others can help cook or prepare meals - do cleaning and shopping -

set up your little weekly med boxes for you with your pills for each day - remind you to take them-

remind you to bathe and eat - feed you, remind you of and/or take you to doc's appointments, etc . . .

BUT IF THEY DON'T PHYSICALLY PAY YOUR BILLS OR THE HOUSE HOLD BILLS - -

BE SURE TO STATE YOU DO THIS ALL BY YOURSELF !

SAY THAT YOU DO NOT NEED ANY ASSISTANCE IN YOUR FINANCES ! ! !

[Pete53]

I use my computer and pay bills online. The SMC Doc who did my C&P actually said this in his report. Since most who come here have a computer they should look into online banking if they don't already do it. My opinion.

Fact is online banking is how I keep up it is very useful.

By the way if you own a car, pay rent, have credit, pay fr groceries, donate to charity or any other thing that involves money you are not incompetent.

[broncovet]

Yes..the Veteran has to "walk a fine line" to get his benefits, and still be declared competent to handle finances.

Many Vets tend to "overstate" or "understate" their disabilities to their doctor. And herein lies the problem: Of course you dont want to understate your disabilities because you will get too low of a rating. As pointed out, however, you dont want to overstate your disabilities either, or you will wind up being rated incompetent.

There is a "sweet spot" right in the middle. It reminds me of the "sweet spot" of a clutch, when you are learning to drive a stick shift. YOu can let the clutch out quickly, all the way to the "sweet spot" and then you have to let the clutch out slowly or you will kill the motor.

Its hard to hit the "sweet spot". First, you probably are not all there completely mentally, so you dont really know what to say. Some Vets shut up, and say nothing. When the doc asks how you are, the natural reaction is, "Fine". You dont want to tell the doc you are "fine". You need to tell him about the fight you and your wife had on the way to the VA....even tho you dont want to.

But, you have to be careful not to "overstate" it also. I never recommed lying, but you do not need to volunteer information that will hurt you, either. Example: Maybe you could NEVER handle a check book, so you handed that to your wife. Some people are just not good with checkbooks, and this does not necessarily mean you are incompetent to handle your own finances. They do have debit cards, you know, and it is possible to set those up so that they wont "bounce", but your card will be declined if you dont have money. It does not take a rocket scientist for you to go to your bank and tell them you dont want to borrow any money on your debit card, that you want it to be declined if you dont have the cash in the bank.

If you do this, then you are "managing" your own finances. Maybe you are not doing it well, but at least you are not bouncing checks, or debits on your debit card. Tell the doc this: "I manage my own finances, have my own debit card, and dont get charged for bounced debit card purchases". You can also have your rent, and utilities and car payments taken out of your check automatically. You can just ask your banker to help you set that up, if you dont know how. YOu would only need to be thinking clearly for a few minutes to arrange this to be done automatically, and you would be managing your finances.

The VA does not say you manage them WELL, it simply asks if you mange your own finances. As I said, if you go to the bank and set up automatic payments for your bills, you are managing your own finances. You dont have to be a math whiz or an accountant to do this.

[Chuck75]

Dealing with any entity that is as fickle as the VA C&P and adjudication scheme is difficult, to say the lest. There has been a total lack of consistency, equity, and fairness. The only thing that seems consistent is a very high error rate, and the errors frequently result in the denial of valid claims.

In my own claims, I have seen.

Loss or deliberate removal of older documents favoring a denied claim.

Failure of the VA to maintain administrative records of decisions that arguably are required by the various administrative practice standards that are to be followed by any administrative government entity.

(In the dark ages, before computerization these records were kept in daily logs and ledgers, some of which went back as far as the civil war.) Because of cost, many of the paper records were never "digitized", just stored somewhere,

and evidently "lost" in order to recover storage space and reduce the storage costs.

Documents that were in the original copies of my records when the copies were provided by St. Louis were no longer in copies sent later by the VARO to myself and my lawyer.

Part of the records involved a claim and denial that originally established my "C" file reference number. When I applied for A/O related benefits and compensation, the VARO tried to tell me that "we don't use those old numbers anymore",

yet the old "C" file number is exactly the same as my current file number.

In my opinion, the full record of the denial would be enough to establish a "CUE" claim going back over thirty years. Wonder why the records vanished while the file was at the VARO.

(And, the VARO wasn't even the one that made the original denial.) One of these days, I'll be able to find and reconstruct some if the key records and information, then it's back to the appeal process again.

(Thirty or so years of retro at even ten percent is not to be sneezed at!)

One non VA instance I remember occurred in the 1990's, and involved a DOD/USAF directive to throw out historical records involving the B-52 beyond a certain number of years.

It was less than a week later that another "directive" came down, requiring the support for a historical research project involving the B-52. We had to hand our copy of the first directive to the researchers instead of the records that we were told to throw out the previous week.

Fed EX showed up in the middle of editing, sorry for the delay, etc.

Yes..the Veteran has to "walk a fine line" to get his benefits, and still be declared competent to handle finances.

Many Vets tend to "overstate" or "understate" their disabilities to their doctor. And herein lies the problem: Of course you dont want to understate your disabilities because you will get too low of a rating. As pointed out, however, you dont want to overstate your disabilities either, or you will wind up being rated incompetent.

There is a "sweet spot" right in the middle. It reminds me of the "sweet spot" of a clutch, when you are learning to drive a stick shift. YOu can let the clutch out quickly, all the way to the "sweet spot" and then you have to let the clutch out slowly or you will kill the motor.

Its hard to hit the "sweet spot". First, you probably are not all there completely mentally, so you dont really know what to say. Some Vets shut up, and say nothing. When the doc asks how you are, the natural reaction is, "Fine". You dont want to tell the doc you are "fine". You need to tell him about the fight you and your wife had on the way to the VA....even tho you dont want to.

But, you have to be careful not to "overstate" it also. I never recommed lying, but you do not need to volunteer information that will hurt you, either. Example: Maybe you could NEVER handle a check book, so you handed that to your wife. Some people are just not good with checkbooks, and this does not necessarily mean you are incompetent to handle your own finances. They do have debit cards, you know, and it is possible to set those up so that they wont "bounce", but your card will be declined if you dont have money. It does not take a rocket scientist for you to go to your bank and tell them you dont want to borrow any money on your debit card, that you want it to be declined if you dont have the cash in the bank.

If you do this, then you are "managing" your own finances. Maybe you are not doing it well, but at least you are not bouncing checks, or debits on your debit card. Tell the doc this: "I manage my own finances, have my own debit card, and dont get charged for bounced debit card purchases". You can also have your rent, and utilities and car payments taken out of your check automatically. You can just ask your banker to help you set that up, if you dont know how. YOu would only need to be thinking clearly for a few minutes to arrange this to be done automatically, and you would be managing your finances.

The VA does not say you manage them WELL, it simply asks if you mange your own finances. As I said, if you go to the bank and set up automatic payments for your bills, you are managing your own finances. You dont have to be a math whiz or an accountant to do this.

Edited August 31, 2011 by Chuck75