Jim,
Thank you for being a reliable and resourceful person with compassion for all of us who have served in the U.S. Military.
My question is, can the VA hold money from you because a rater stated you incompetent.
I have been given 40% for bladder incompetence. My monthly and lump sum was awarded Nov 1, 2011, my birthday. Backdated til Jan 2009. I was sent a letter on the 26th of October stating I was incompetent.
I used your template for “Notice of Disagreement” and sent it out certified mail on 11/2/11. I have a Veterans Service Organization representing me, however, I was just informed by my VSO reprentative that he can no longer help me with my claim since I sent off the NOD???
I'm looking for proactive representation vs. passive representation. Is there someone (a law firm) that can assist me during the hearing process? I have been awarded $541x34 months; however it's being held in escrow.
My mental disability is bipolar II, Anx/Dep and PTSD--70% -- my copy of the raters notes show, however, it has been deferred.
Please advise me on what my next steps should be while waiting for an appeal? Why would that Veterans Service Organization want me to just wait until they came to me and let my 30 days lapse without saying a word about my competence?
Reply:
Most Veterans Service Organizations and their representatives are only there to file a claim for you. They complete some paperwork, submit it to VA and that ends their responsibility. They act as middleman and triage claims...a task you can easily do yourself.
The VSO is not an advocate. Advocacy is defined as "The act of pleading for, supporting, or recommending; active espousal." The VSO is usually not trained nor allowed by the parent organization to act as an advocate. The better Veterans Service Officers will try to help you but those are few and far between. Most will give you the sort of service you've received.
Unfortunately, the law does not allow you to retain an attorney until such time as there has been a formal denial of a benefit from a claim you've submitted. The veteran is left to do the claim for himself. I prefer and recommend that veterans DIY claims until such time as there is a denial of a benefit that is deserved and then the vet should seek out attorney representation. See http://www.vawatchdogtoday.org/How_To_Hire_An_Attorney.html
The incompetence label isn't hard to come by. You were at a C & P exam at some point during the claims process. The examiner may have asked you questions about how you handle your finances. Your reply may have been "My spouse does most of our check writing and bill paying. He/she is really good at that and I'm not so I don't do it." That is enough for the examiner to make a note that you are incompetent to manage your money that VA pays you for your compensation.
The rater (Rating Veterans Service Representative) doesn't actually make that incompetency decision. Once the C & P examiner has stated that you are incompetent to manage your finances, you will be contacted by a Field Examiner from your VA Regional Office. That individual will visit your home for an interview. At that time the FE will tell you that a fiduciary will be appointed to manage your finances for you.
You may ask that a relative be appointed as fiduciary and your request will be given consideration. Not all relatives will meet the standards of good credit and the demonstrated ability to do what will be required. If a relative isn't chosen, the VA Field Examiner will appoint a fiduciary who is a contractor with VA. That person will have access to your money (you won't) and will report to VA. You will then have to arrange to have bills paid by the VA fiduciary.
If you disagree that you are incompetent, you must appeal ASAP. The appeal is pretty routine and is accomplished with a Notice of Disagreement (NOD) letter much as any other appeal is started. Please note that when VA has "proposed" to appoint a fiduciary that they will not accept a NOD. The NOD is only accepted in response to and adverse action by VA and is not accepted when there is only a proposal of adverse action. I recommend that the veteran proceed to the NOD and anticipate that VA will reject it. This will get it in the record and establish that you do not believe VA made the correct decision.
The VA fiduciary process is currently undergoing many changes. There is a new director, laws have been changed and a lot is happening for the better. As with all things at VA, this will take time and the outcome isn't predictable. Today I recommend that any veteran who is notified of a fiduciary appointment and who believes that they are not incompetent to manage their finances should proceed to appeal. You will likely have to do the appeal yourself. I'm currently updating my page on the fiduciary appointment process. http://www.vawatchdogtoday.org/Fiduciary_Appointments.html This should be completed by the first part of 2012.
Finally...yes, VA can and will withhold your retroactive pay until such time as the fiduciary appointment issue is settled. In your NOD you should make it clear that you need you monthly benefit to continue and that if it doesn't continue, you will suffer financial hardship.