The potentially least appealing, yet inherent, of all topics regarding VA benefits is adverse actions. Understandably, no one finds comfort discussing or reading about such a negative and undesirable subject; however Veterans applying for benefits must be aware of, and know how to respond to, this type of situation. The VA is capable of proposing and implementing adverse actions that include more than just the denial of benefits, such as reducing disability ratings and arguably the most sensitive issue – declaring incompetency.
The VA will propose to find incompetent any Veteran 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.” The result of a substantiated proposal is the appointment of a fiduciary, whether court appointed or professional, or possibly even a family member that provides supervision and oversight of the Veteran’s benefits. The VA’s intent here is genuine – protect Veterans who are indeed unable to effectively handle their finances. However, as with many government endeavors – the application of law is sometimes flawed considering many Veterans who face this proposal are actually entirely capable of governing their personal affairs and do not need the VA to protect them.
Fortunately, Federal law pertaining to this subject mandates that specific requirements – or due process – be followed prior to a finding of incompetency being made. First, the Veteran must receive notice of the proposal and be provided with 30 days to respond. Next, the notice must outline the basis for the proposal and disclose the right to request a hearing, during which the Veteran may produce any supporting witnesses or evidence he or she so desires. Further, the VA is required to establish “clear and convincing” evidence that “must leave no doubt” in order for the finding to be implemented. The VA’s evidence may come from a variety of sources including C&P exams, information contained within the C-file or facts found during a “field examination” conducted by the VA.
There are several other noteworthy safeguards, meant to protect Veterans, found within the law. Most importantly, the law requires any doubt be resolved in favor of the Veteran – similar to service connection entitlement. Veterans may also appeal findings of incompetency through the same judicial review process as with the denial of benefits. Lastly, the finding of incompetency is not always permanent and subsequent changes in status do not require disability ratings to changeto name a few.
Regrettably, two Veteran groups susceptible to this adverse action are the elderly and those with significant psychological disabilities. Although, these attributes do not automatically justify a rating of incompetency. If you, or someone you know, receives this type of notice – and you disagree with the proposal – remember that you are entitled to due process and should contest the action immediately. In my next post, I will provide an overview of options when contesting adverse action proposals.
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