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Q742: My husband is 60% but 100% IU P&T For 20 years. He is going to file on some new claims however his VA doc filled out an A&A form he put on there I handle our finances. Will this trigger a fiduciary investigation? If so what does that involve? Also we have been told that he won’t qualify for A&A because he has to have at least one SC injury at 109%. Is this true? Thanks.
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A1: My suggestion would be to go to a local VSO or DAV and get the information. They are knowledgeable and can assist you with any questions and submit any forms. That will save you the headaches and stress. Hope this helps. (RC) 6/26/21
A2: I would suggest you get help from a rep from DAV, AMVETS, VFW or any certified agency. I have heard that a easy way to get your right to handle your own money taken away by the VA is to tell them that your wife or somebody else is already handling your affairs. I went on a 3 year fight about competency by simply filing for 100% from 70%. If I ever did trust the VA it stopped right there and then but you have to get your ducks in order because you might have already been compromised. Do not trust anyone they deal in black and white and once you get associated with incompetency as soon as anyone sees you are associated with incompetency it is a done deal whatever you say is spoken by an incompetent person and the proof is that I just told you and now ou assume and say they said I was incompetent therefore I must be incompetent. I fought this for 3 years and I had never been so scared and it was another way that you are traumaticized. (MK) 6/27/21
A3: To start with, our policy is to not reopen any claim on a veteran that is drawing 100% under TDIU unless the new disability may cause his/her demise. In that case, we would file for service connection because we want the spouse and dependents taken care of in the event of a service connected death (DIC benefits). Whenever you reopen a claim and you have not held the individual ratings for 20 years or more, the VA can do one of three things, e.g, increase, leave the same, or decrease the ratings. The IU rating is a P&T rating unless you go back to the VA for another disability request. Then they can relook at everything. If a law has changed on a disability rating since the vet was IU, then the new law can apply. We always brief the veteran on the possible consequences and have them sign a form saying they acknowledge we told them.
This a supplemental answer to your question. Got carried away with "doing no harm" on filing claims when IU. Normally, when the doctor annotates that the veteran needs help handling their finances, a proposal to deem incompetent is opened. The VA will give 60 days due process for the veteran to respond as to why they should not be deemed incompetent. An exam from another doctor can help in this instance. If the veteran is deemed incompetent, then a fiduciary will be assigned by the VA. The VA also explains the Brady Bill to the veteran saying he will not be able to have firearms in the home. You can apply for relief to the VA regional office in this case. Normally a 100% rating for an individual rating is needed and that causes the need for A&A but there are always an extra scheduler rating that could apply.
(DS) 6/28/21
A4: A review of 38 CFR 3.352 'Criteria for determining need for aid and attendance and 'permanently bedridden' may be helpful to you in understanding what they evaluate for regarding SMC L (A&A). My thought is that since the doctor put that info. about you handling finances, it may open up a proposal for incompetency. It may be helpful to review 38 C.F.R. 3.353, The veteran has due process and will be able to present evidence to argue against the proposal. Some of that can be financial evidence that he can manage his funds. Some will recommend requesting a letter from provider stating veteran is mentally and/or physically competent to manage his own finances. Of course, since the provider, as you say, already stated that you handle the finances, it may depend on exactly what the doctor wrote. As far as submitting claim (s), if vet was continuously rated for that timeframe, 38 CFR 3.951 - Preservation of disability ratings may apply. I suggest he find an advocate, be it a VSO or attorney, at least for a consult before he submits a claim. (MC) 6/29/21