A Finding Of Incompetency Is Proposed.

[otoolejp]

I was granted 70% for SC Schizoaffective disorder yesterday, and in it says:

A finding of incompetency is proposed. You will receive a separate correspondence discussing this issue. We have withheld your retroactive payment pending our decision on incompetency.

Later in the letter it says:

Your VA examination shows the examiner opined your are (sic) not capable to (sic) managing your won (sic) financial affairs (Who is the incompetent one?) Since there is a definitive finding of incompetency by a physician in this case and you are shown not to be able to manage personal affairs to include disbursement of funds, we propose to make a determination of incompetency for VA purposes.

This really scares me. I did several hours of research on the fiduciary program and found spouses being removed as fiduciary, court cases for embezzlement of veteran's funds by their fiduciary and so on.

I'm scared that if they do find me incompetent that they won't even appoint my spouse as my fiduciary, as we have horrible credit from my medical bills, hospital stays, and the birth of my daughter this year. If they'd simply give me my retro, I would be able to pay off all my debt other than my house, and student loans and our credit would improve.

They say I have 30 days to request a hearing (which also scares me, I am agoraphobic and do really badly around strange people.) I'm assuming I should request a hearing.

I did my benefits claim and got my 70% SC without a VSO or lawyer (my wife really did most of the work) and I have heard good and bad things about VSOs. Should I get one? There only seems to be one VA certified VSO in Idaho.

They also sent me a 'Statement in support of claim' document to fill out. Maybe I'm just dense, but I don't know what I could possibly put on it other than "My wife and I have a monthly budget meeting, and then pay the bills together. Our budget plans are such that we expected to be fully debt free other than our house and student loans by November 2014, not counting any monies from the VA. Now that I have been awarded a retroactive payment, I have created a new budget for these monies to pay off these same debts we were expected to have paid by November 2014. Our new budget including the VA granted money calls for contributions to my wife's 401k, the fully allowed yearly contribution for each of us to IRA accounts, monthly savings, the building up of 2 years food storage for emergencies, and savings to purchase a replacement vehicle to replace my wife's aging car."

I read around and I plan to get an IMO from my psychiatrist (she helped with a letter for SSDI) stating that I am competent to handle my own finances. Is there anything else she should include in the letter?

I'm wondering where "Since there is a definitive finding of incompetency by a physician in this case" came from? I'm assuming my C & P? I was extremely stressed out and having panic attacks during my C & P, I have memory loss issues anyway, and my C & P lasted over 4 hours, but I don't remember her ever asking anything that could be used to assume I'm incompetent to handle my finances, to include, who pays the bills in your family, though I might just not remember it. Is it my C & P that will show where this definitive finding of incompetency came from? If so, how do I request a copy of it? If not, what can I request from the VA that would show how they came up with that finding? I want to know what they said so I can go into my hearing prepared to fight back.

I in no way am incompetent to handle my finances, in fact, I alone handle my wife's 401k mutual funds and such, I've also received A's in college financial and managerial accounting in the past.

Your answers and time are greatly appreciated (I know I asked a ton of questions, I'm sorry), as I am trying anything I can to alleviate my stress and depression over possibly having my future controlled by someone who doesn't know or care about me. I'm a real mess, but handling my budget is one of the few things that I'm capable of that makes me feel like I am contributing to the inordinate amount of work my wife has on her plate as the bread winner, and caretaker of me, our house, and our daughter.

Is there anything else I need to know or do to help my chances at fighting this?

I'm crazy, not incompetent. /sigh

[otoolejp]

I spoke with the DAV, and the rep said I should just get a letter from my psychiatrist saying that I can handle my own finances, that my wife and I go over the budget each month together and pay the bills together, and then write a statement saying about the same. He recommended against requesting a hearing as he felt the letter and statement would be enough evidence that they wouldn't declare me incompetent, and a hearing would drag out getting my retro even longer. He said that we would just appeal if for some reason they did declare me incompetent anyway.

Does anyone else experienced in this have an opinion?

[jbasser]

Follow the advice you have received here. There are several other related issues to being found incompetent.

Once you make the list, Your rights get detoured. I know several folks in the same boat who like to hunt. They cant buy firearms.

J

[john999]

I find it strange that the VA wants to grant 70% and then make a finding of incompetency. Why did they not rate you 100% if they don't think you can take care of yourself? I got a rating for 70% a host of mental disorders. I know I should have been 100%, but I went for TDIU since I was on SSDI. This would be my next step after you get the incompetency issue cleared. I would not settle for 70% if I could not work. Either go for 100% or TDIU. Can I ask how old you are?

[Berta]

Yeah me too John 70% is like saying you are still 30% competent.......

I thought a vet had 60 days to request a hearing........they said 30 days?

In M21-1MR it says this:

“The rating activity makes a final decision on the competency issue at the later of the following times:

• the end of the 65-day response period, or

• after a hearing and the receipt of evidence from the hearing.”

M21-1MR, Part III, Subpart v, Chapter 9, Section B

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CDoQFjAC&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptv%2Fch09%2Fpt3_sp5_ch9_secB.doc&ei=t7isUqiCHYbcyQG51YDABQ&usg=AFQjCNGxcdkJlrk-rotFP-8qWEd_GZj9Gg&bvm=bv.57967247,d.aWc

Please follow the advise here as Jbasser said...... the lazy ass DAV rep probably just doesn't want to have to show up for a hearing......

Bring a strong letter from your psychiatrist, and bring your wife too if you can, and her statement as to what you told us above,and any other info that shows you are,in fact, competent.

“I did my benefits claim and got my 70% SC without a VSO or lawyer (my wife really did most of the work)”

SO are you sure they didn't award 100%????? as you already had the 70%.

You stated”

“I am agoraphobic “

If the shrink you have would put that diagnosis into the letter they write for you, and state that it is more than likely the agoraphobia is from your SC disability and give a brief medical rationale, then

(if they have not already declared you 100% or deferred TDIU)

request and go to the hearing and whip out a claim for the TDIU ( the form is here ,Form 21-8940), give the hearing officer the shrink's statement (copy of),even you you send it to them with the hearing request, and also bring a formal request for a claim for Special Monthly Compensation ( the SMC S award ),as you are housebound due to your agoraphobia, due to your SC condition.

That will fix those mothers.....

Edited December 14, 2013 by Berta

[Berta]

Sorry, I didnt read M21-1MR thoroughly:

Important: Unless the beneficiary/claimant requests a hearing within 30 days of the date a regional office (RO) issues notice of the proposed rating, the RO must complete the following actions within 21 days of the date the response period ends:

• prepare the final rating decision

• process and authorize the rating decision, and

• complete the actions in the next step.

[otoolejp]

Follow the advice you have received here. There are several other related issues to being found incompetent.

Once you make the list, Your rights get detoured. I know several folks in the same boat who like to hunt. They cant buy firearms.

J

I guess I need to get used to the anxiety of going to hearing, but I will request one based on so many people here saying I should.

I find it strange that the VA wants to grant 70% and then make a finding of incompetency. Why did they not rate you 100% if they don't think you can take care of yourself? I got a rating for 70% a host of mental disorders. I know I should have been 100%, but I went for TDIU since I was on SSDI. This would be my next step after you get the incompetency issue cleared. I would not settle for 70% if I could not work. Either go for 100% or TDIU. Can I ask how old you are?

This echos the feelings I had when I opened the letter and read they wanted to rate me incompetent, and then even more so when I saw they lengths they go to try to control the money I earned putting out for my country.

What really annoys me is that I don't agree all with the GAF they gave me was a 40. They said that this most closely approximates the criteria for a 70 percent disability evaluation.

Then they go on to state: "A higher evaluation of 100 percent is not warranted unless the evidence shows total occupational and social impairment, due to symptoms such as: Persistent delusions or hallucinations....etc

Earlier in the same letter they sent me, they said:

We have assigned a 70 percent evaluation for your shizoaffective disorder based on:

Persistent hallucinations

Persistent delusions

etc...

Sounds to me like I should be 100 percent.

When I got my award letter, they said they had deferred TDIU because I already get SSDI. I have a thread about it here:

I'm 31. I got out of the military when I was 21.

Yeah me too John 70% is like saying you are still 30% competent.......

I thought a vet had 60 days to request a hearing........they said 30 days?

In M21-1MR it says this:

“The rating activity makes a final decision on the competency issue at the later of the following times:

• the end of the 65-day response period, or

• after a hearing and the receipt of evidence from the hearing.”

M21-1MR, Part III, Subpart v, Chapter 9, Section B

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CDoQFjAC&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptv%2Fch09%2Fpt3_sp5_ch9_secB.doc&ei=t7isUqiCHYbcyQG51YDABQ&usg=AFQjCNGxcdkJlrk-rotFP-8qWEd_GZj9Gg&bvm=bv.57967247,d.aWc

Please follow the advise here as Jbasser said...... the lazy ass DAV rep probably just doesn't want to have to show up for a hearing......

Bring a strong letter from your psychiatrist, and bring your wife too if you can, and her statement as to what you told us above,and any other info that shows you are,in fact, competent.

“I did my benefits claim and got my 70% SC without a VSO or lawyer (my wife really did most of the work)”

SO are you sure they didn't award 100%????? as you already had the 70%.

You stated”

“I am agoraphobic “

If the shrink you have would put that diagnosis into the letter they write for you, and state that it is more than likely the agoraphobia is from your SC disability and give a brief medical rationale, then

(if they have not already declared you 100% or deferred TDIU)

request and go to the hearing and whip out a claim for the TDIU ( the form is here ,Form 21-8940), give the hearing officer the shrink's statement (copy of),even you you send it to them with the hearing request, and also bring a formal request for a claim for Special Monthly Compensation ( the SMC S award ),as you are housebound due to your agoraphobia, due to your SC condition.

That will fix those mothers.....

It did say I have 60 days, but if I take longer than 30 to request a hearing they will stop paying me my monthly, and start the fiduciary process.

70% is what I just got December 5th. It's a miracle that I got it. I didn't know about getting a nexus letter, they stated 'No private treatment records were submitted by the veteran in support of claim (my wife sent them in twice.)' I guess I just got lucky in who did my C & P and that they were willing to make full copies of all my psych/therapist/hospital records that my wife smartly sent me to the C & P with, and take the time to read and consider them all before making their recommendation to the rater.

I don't think my doctor would have any problem adding it to the diagnosis, and blaming it on the SC, as it's been brought up many times. My wife has to drive me to all my appointments, and attends with me, because I can't go in alone.

I turned in my 21-8940 this Friday at the DAV with a letter from my doc stating that I'm unemployable due to my SC.

I will apply for SMC, as I can count on one hand the number of times I left my house/car in the last year that wasn't directly due to an SSDI/VA/Doctors appointment/Hospitalization.