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M21-1, Part III, Subpart v, Chapter 9, Section B – Processing Awards to Incompetent Beneficiaries

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
4
5
6

1.  General Authorization Issues in Incompetency Cases


Introduction

This topic contains information on general authorization issues in incompetency cases, including

Change Date

May 24, 2018

III.v.9.B.1.a.  Indicating Incompetency When Scheduling a Physical Examination

When requesting an examination of an incompetent Veteran,
  • indicate in the COMMENTS section of the examination request that the Veterans Benefits Administration (VBA) has determined the Veteran is incompetent, and
  • provide (in the same section) the name and address of the Veteran’s fiduciary.
Reference:  For information on inputting examination requests, see M21-1, Part III, Subpart iv, 3.A.9 and 10.

III.v.9.B.1.b.  Actions to Take When an Incompetent Veteran Fails to Report for a Routine Future Examination

If an incompetent Veteran fails to report for a routine future examination,
  • send a notice of proposed adverse action to the Veteran before reducing or suspending his/her benefits
  • send a letter to the fiduciary explaining
    • that the Veteran failed to report for a VA examination
    • why the examination was necessary
    • that the Veteran may notify VA that he/she is willing to report for the examination and VA will reschedule it, and
    • that failure to report for the examination could result in a reduction or discontinuation of his/her benefits, and
  • send an e-mail to the fiduciary hub of jurisdiction that
    • explains the Veteran has failed to report for an examination, and
    • requests assistance in determining whether the Veteran is willing to report for the examination.

Reference:  For more information on processing a Veteran’s failure to report for an examination, see M21-1, Part III, Subpart iv, 8.E.1.


III.v.9.B.1.c.Admission of an Incompetent Veteran to an Institution for Medical Care

For information on handling cases in which an incompetent Veteran is admitted for medical care to a Department of Veteran Affairs (VA) or non-VA institution, seeM21-1, Part III, Subpart v, 6.E.

III.v.9.B.1.d.  Claims From Claimants Whom VA Has Determined Are Incompetent

VA must process claims it receives from a claimant whom VA has determined is incompetent, even if VA has appointed the claimant a fiduciary.
A VA determination of incompetency under 38 CFR 3.353 constitutes a decision regarding the claimant’s ability to manage his/her own affairs, including disbursement of funds.  It does not preclude such a claimant from prosecuting a claim for benefits.
Reference:  For more information on the process for determining whether a beneficiary is competent, see M21-1, Part III, Subpart iv, 8.A.3.

2.  Processing Incompetency Determinations and Authorizing Awards When a Beneficiary’s Competency Is at Issue


Introduction

This topic contains information on processing incompetency determinations and authorizing awards when a beneficiary’s competency is at issue, including

Change Date

May 24, 2018

III.v.9.B.2.a.  Sources of Competency and Incompetency Determinations

Competency and incompetency determinations may be made by
  • VA rating decision
  • court decree, or
  • both a VA rating decision and court decree.
Notes:
  • As explained in the remaining blocks of this topic, the procedure for handling a VA rating decision of competency/incompetency differs from the procedure for handling a court decree of competency/incompetency.
  • VA is not required to recognize a court-appointed fiduciary for purposes associated with the payment of VA benefits.
Reference:  For more information on incompetency determinations, see

III.v.9.B.2.b.  Processing Medical  Evidence of Incompetency That Does Not Involve a Judicial Determination

Follow the instructions in the table below after receiving medical evidence that
  • indicates a beneficiary may be incompetent, per 38 CFR 3.353, but
  • does not involve a judicial determination of incompetency.
Reference:  For more information on handling requests for competency determinations without medical or a judicial determination regarding a beneficiary’s competency, see M21-1, Part III, Subpart iv, 8.A.1.f.
Step
Action
1
Establish an appropriate rating end product (EP) if one is not currently pending.

2

Refer the evidence to the rating activity for a determination as to the beneficiary’s competency.
Note:  If the medical evidence is not adequate for rating purposes, undertake development to obtain additional evidence before referring the case to the rating activity.
Reference:  For more information on processing evidence of a child’s permanent incapacity for self-support, see M21-1, Part III, Subpart iii, 7.1 and 2.

3

If, after reviewing the evidence, the rating activity determines the beneficiary is
  • still competent,
    • annotate the evidence to show it was reviewed but warranted no formal action
    • clear the EP (unless other rating-related issues are still pending), and
    • disregard the remaining steps in this table, or
  • incompetent, the rating activity will prepare a rating decision that proposes a rating of incompetency.  Proceed to the next step after the rating activity refers the decision to the authorization activity.
Note:  If the beneficiary has an electronic claims folder (eFolder), enter annotations in the SUBJECT field of the evidence’s document properties, according to the instructions in
4
Prepare a notice of the proposed rating of incompetency in accordance with instructions in M21-1, Part III, Subpart v, 9.B.3.af, and send it to the beneficiary.
Note:  If the beneficiary has a power of attorney (POA), send a copy of the notice to the POA in accordance with the instructions in M21-1, Part I, 3.B.1.
5
Does the rating decision address other issues (beyond the issue of the beneficiary’s competency)?
  • If yes, proceed to the next step.
  • If no,
    • clear the associated EP, and
    • proceed to Step 7.
6
Promulgate and authorize the rating decision.
Note:  Follow the instructions in M21-1, Part III, Subpart v, 9.B.2.c, if promulgation of the rating decision will result in the
  • generation of an award of benefits, or
  • payment of increased benefits.
7
Did the system automatically establish EP 590, Due Process for Incompetency?
  • If yes, proceed to the next step.
  • If no,
    • manually establish the EP, and
    • proceed to the next step.

8

Associate the rating decision, decision notice (if applicable), and award document (if applicable) with the claims folder.
9
Transfer the EP 590 to the fiduciary hub of jurisdiction.
Reference:  For more information on the jurisdiction of individual fiduciary hubs, see M21-1, Part III, Subpart v, 9.A.1.d.
Important:  Process an award or award adjustment according to the instructions inM21-1, Part III, Subpart v, 9.B.2.c if, at any point during the process described in the table above, a beneficiary becomes entitled to
  • an original award of benefits
  • a reinstatement of benefits, or
  • an increase in benefits.
Note:   If, during the due process period (the 60-day period that follows the date of the notice of the proposed rating of incompetency), VA receives

III.v.9.B.2.c.  Claimants Who Become Entitled to Benefits Before the Rating Activity Makes a Final Determination Regarding Competency

If, at any point during the process described in M21-1, Part III, Subpart v, 9.B.2.b, the rating activity determines a claimant is entitled to an original award of benefits, a reinstatement of benefits, or increased benefits, generate an award or process an award adjustment (whichever applies) that is effective the current monthwithoutwaiting for resolution of the competency issue.
Exception:  Under certain circumstances, which should be rare, not taking the action described in the preceding paragraph might be in the beneficiary’s best interest.  If, for example, the evidence of record shows the beneficiary has a history of giving away all his/her income or spending it on frivolous activities on the same day he/she receives it, it may be in the beneficiary’s best interest to withhold benefits until
  • the rating activity determines the beneficiary is competent, or
  • the fiduciary hub of jurisdiction assigns the beneficiary a fiduciary.
Important:  In all cases, withhold all retroactive benefits due the beneficiary until the rating activity makes a final decision regarding the beneficiary’s competency.  If the rating activity ultimately decides the beneficiary is
  • competent, release all benefits that were withheld while deciding whether the beneficiary was competent, or
  • incompetent, withhold the retroactive benefits until the fiduciary hub of jurisdiction assigns the beneficiary a fiduciary.

III.v.9.B.2.d.Actions the Authorization Activity Takes Following Receipt of a Recommendation for Payment From a Fiduciary Hub

When a fiduciary hub makes a recommendation for payment, its own authorization activity typically processes the recommendation.  When the fiduciary hub’s authorization activity is unable to process such a recommendation, the fiduciary hub refers the recommendation to a regional office (RO) for processing.
The table below describes the actions ROs must take after receiving a recommendation for payment from a fiduciary hub.
If the fiduciary hub …
Then the RO must …
release any withheld benefits to the fiduciary in accordance with
Notes:
  • If, in addition to releasing withheld benefits,  the RO adjusted the beneficiary’s award, it must also
    • furnish the certifying fiduciary hub a copy of the award document, and
    • notify the beneficiary’s fiduciary of the award adjustment and his/her review rights with regard to it, perM21-1, Part I, 2.C.4.
  • There is no requirement to notify the beneficiary’s fiduciary unless the RO adjusted the beneficiary’s award.
  • agrees the beneficiary is incompetent but concludes that reasonable protection of the interests of the beneficiary can be accomplished with follow-up, personal contact, and
  • furnishes the RO with certification of supervised direct payment (SDP) onVA Form 21-555
release any withheld benefits directly to the beneficiary in accordance with
Note:  If, in addition to releasing withheld benefits, the RO adjusted the beneficiary’s award, it must also
  • furnish the certifying fiduciary hub a copy of the award document, and
  • notify the beneficiary of the award adjustment and his/her review rights with regard to it, per M21-1, Part I, 2.C.4.
  • concludes the beneficiary is competent to manage the funds payable to him/her, and
  • furnishes the RO with certification of SDP on VA Form 21-555
refer the following to its rating activity:
  • a statement of the finding of competency by the fiduciary hub, and
  • all evidence upon which the fiduciary hub based its conclusion.
Result:  The rating activity must reassess the issue of competency, per 38 CFR 3.353.  If the rating activity decides the beneficiary
  • is competent, the RO must
    • release any withheld benefits directly to the beneficiary
    • furnish the certifying fiduciary hub a copy of the award document (only if the RO also adjusted the beneficiary’s award), and
    • notify the beneficiary of the final determination and his/her review rights, per M21-1, Part III, Subpart v, 2.B, or
  • remains incompetent, the RO must
    • continue the SDP, and
    • notify the fiduciary hub of the rating decision.
Reference:  For more information about the evidentiary requirements for determining whether an incompetent beneficiary has regained competency, see M21-1, Part III, Subpart iv, 8.A.4.d.
Note:  If the award of the beneficiary referenced in the table above
  • requires adjustment, the RO makes the adjustment under the pending EP 290, or
  • does not require adjustment, the RO clears the pending EP 290.

III.v.9.B.2.e.  Processing a Court Appointment of a Fiduciary Without a Judicial Determination of Incompetency

Do not consider a court appointment of a fiduciary as evidence of incompetence requiring rating action unless it is also accompanied by either
  • a judicial determination of incompetency, such as a court order or decree, or
  • medical evidence.

III.v.9.B.2.f.  Processing a Court Decree of Incompetency or Court Appointment of a Fiduciary by Reason of Incompetency

If VA receives a court decree of incompetency or a court appointment of a fiduciary by reason of a beneficiary’s incompetency, it is unnecessary to
  • prepare a proposed rating of incompetency, or
  • provide notice of proposed adverse action in the matter of incompetency.
Important:
References:  For more information about the

III.v.9.B.2.g.  Processing a Judicial Determination of Incompetency Regarding a Veteran

Judicial findings of a court with regard to the competency of a Veteran are notbinding on the rating activity.
Follow the steps in the table below after receiving a judicial determination of incompetency regarding a Veteran.
Step
Who Is Responsible
Action
1
RO
If the Veteran has been admitted to a hospital for treatment or observation, request medical records from the hospital that would be useful in evaluating the Veteran’s competency.
2
RO
Complete a final rating decision regarding the Veteran’s competency.
3
RO
Follow the instructions in the table below when processing the rating decision referenced in Step 2.
If the rating activity determined the Veteran is …
Then …
competent
  • complete any pending award actions
  • send a decision notice to the Veteran, and
  • clear the pending EP 020 (or other associated rating EP).
incompetent
  • complete any pending award actions, withholding any retroactive benefits until the fiduciary hub of jurisdiction assigns the Veteran a fiduciary
  • send the Veteran contemporaneous notice that satisfies the requirements of M21-1, Part III, Subpart v, 9.B.4.b
  • clear the pending EP 020 (or other associated rating EP)
  • ensure the judicial documents are associated with the claims folder
  • establish an EP 290, FID-Fiduciary Adjustment
  • transfer the EP 290 to the fiduciary hub of jurisdiction, and
  • notify the fiduciary hub of jurisdiction using
4
RO
Pending certification of a fiduciary or other instructions from the fiduciary hub, continue any existing
  • apportionments, and
  • payments VA is making to the Veteran.
Reference:  For more information on handling a court’s appointment of more than one fiduciary, see M21-1, Part III, Subpart v, 9.C.1.c.
5
fiduciary hub
authorization activity
Following receipt of certification,
Reference:  For information about the actions an RO’sauthorization activity must take following receipt of a recommendation for payment from a fiduciary hub, seeM21-1, Part III, Subpart v, 9.B.2.d.

III.v.9.B.2.h.  Processing a Judicial Determination of Incompetency Regarding a Parent, Surviving Spouse, or Adult Child

Rating action is not required when a court of law determines a parent, surviving spouse, or adult child is incompetent.  When this occurs,
  • send contemporaneous notice to the beneficiary
  • provide oral notification of the Brady Handgun Violence Prevention Act (Brady Act) restrictions to the beneficiary, and
  • continue direct payment pending receipt of certification of a fiduciary or other payee from the fiduciary hub of jurisdiction.

III.v.9.B.2.i.  Processing a Evidence That a Child Beneficiary Is Permanently Incapable of Self-Support

Following receipt of evidence indicating a child beneficiary is permanently incapable of self-support, refer the case to the rating activity for a decision as to whether or not the child
  • was incapable of self-support prior to age 18
  • remains incapable of self-support on a permanent basis, and
  • is unable to manage his/her own financial affairs.
Note:  A child may be unable to support him/herself and still be considered competent to handle his/her financial affairs.
References:  For more information on

III.v.9.B.2.j.  Authorizing an Award for a Beneficiary Found Competent by Court Decree

If a beneficiary previously held incompetent
  • by court decree only (not by rating decision) is subsequently found competent by court decree,
    • initiate direct payment to the beneficiary after a fiduciary hub certifies the corresponding court proceedings were regular and proper in all respects
    • annotate the remarks section of the amended award to reflect the facts surrounding the restoration of competency, and
    • e-mail a copy of the award document to the fiduciary hub that supervises the beneficiary’s fiduciary, or
  • by court decree and by VA rating decision is subsequently found competent by court decree,
    • refer the court decree and any evidence that accompanied it to the rating activity, and
    • do not initiate direct payment to the beneficiary without approval from the fiduciary hub.
Note:  If the beneficiary is a child who is incapable of self-support by reason of mental defect, the rating activity must make a new determination as to whether the child remains entitled to VA benefits.  Do not defer award action pending this referral to the rating activity.
Reference:  For more information on awards to incompetent Veterans who are institutionalized for medical care, see M21-1, Part III, Subpart v, 6.E.1.

3.  Due Process Requirements for Incompetency Determinations


Introduction

This topic contains information on due process requirements for incompetency determinations, including

Change Date

February 19, 2019

III.v.9.B.3.a.  Elements of a Notice of a Proposed Rating of Incompetency

Notice of a proposed rating of incompetency must include
  • a copy of the proposed rating decision or a short summary of the facts and evidence of record that supports the finding of incompetency
  • an explanation of the effect that a finding of incompetency has on the payment of VA benefits
  • notice that a VA rating of incompetency prevents the beneficiary from purchasing firearms, according to the Brady Act
  • a statement of the beneficiary’s right to
    • submit evidence to show why the proposed action should not be taken
    • request a personal hearing to present evidence, and
    • have representation during the hearing, and
  • an indication that the beneficiary has 60 days to respond to the notice.
Note:  If a beneficiary requests a hearing at any time before VA makes a final decision regarding the beneficiary’s competency, VA will wait to make a final decision until after it holds the hearing.
References:

III.v.9.B.3.b.  Text to Include in a Notice of a Proposed Rating of Incompetency

Include the text in the paragraphs below when preparing a notice of a proposed rating of incompetency for a beneficiary who is already receiving VA benefits.
We have received information showing that because of your disabilities you may need help in handling your Department of Veterans Affairs (VA) benefits. We received the information from [name of physician, medical institution, etc.].The report, dated [date of the report], shows [brief description of the diagnosis and/or findings].
We must decide if you are able to handle your VA benefit payments. We will base our decision on all the evidence we already have and any other evidence you may wish to send us. Before we make a final determination, you have the right to submit any evidence, information, or statement that will present your side of the case.
What We Propose to Do
We propose to rate you incompetent for VA purposes. This means a fiduciary may be appointed to help you manage your VA benefits. Payment of any money due you will be made directly to your fiduciary. This person or institution must use your payments for your benefit and is responsible to VA for their use.
We have enclosed a copy of our rating decision for your review. It provides a detailed explanation about our proposal, the reason for it, and the evidence considered.
When and Where To Send the Information or Evidence
Please mail or fax all responses to the appropriate address listed on the attached Where to Send Your Written Correspondence chart within 60 days from the date of this letter.  Please put your full name and VA file number on the evidence.  If we don’t receive the information or evidence within that time, we will make our decision based only on the evidence we have received.
How This Decision Could Affect You
A determination of incompetency will prohibit you from purchasing, possessing, receiving, or transporting a firearm or ammunition. If you knowingly violate any prohibition, pursuant to section 924(a)(2) of title 18, United States Code, as implemented by Public Law 103-159 of the Brady Handgun Violence Prevention Act, you may be fined, imprisoned, or both.
If we decide that you are unable to handle your VA funds, you may apply to VA for the relief of prohibitions imposed by the Brady Act with regards to the possession, purchase, receipt, or transportation of a firearm. Submit your request on the enclosed VA Form 21-4138, Statement in Support of Claim. VA will determine whether such relief is warranted.
How to Obtain a Personal Hearing
If you desire a personal hearing to present evidence or argument about your ability to handle your VA benefits, notify this office and we will arrange a time and place for the hearing. If you want, you may bring witnesses and their testimony will be entered in the record. VA will furnish the hearing room and provide hearing officials. VA cannot pay any other expenses of the hearing since a personal hearing is held only on your request.
Please notify us as soon as possible if you would like to request a hearing. If VA receives your hearing request prior to the final competency determination, we will continue to send payments to you until we have held the hearing and reviewed the testimony. If no request for hearing is received prior to the final competency determination, a decision will be made based on the evidence of record.
How to Obtain Representation
An accredited representative of a veterans’ organization or other service organization recognized by the Secretary of Veterans Affairs may represent you, without charge.  An accredited agent or attorney may also represent you.  However, under 38 U.S.C. 5904(c), an accredited agent or attorney may only charge you for services performed in support of your decision review, either a notice of disagreement, supplemental claim, or higher-level review.  If you desire representation, let us know and we will send you the necessary forms.  If you have already designated a representative, no further action is required on your part.
Important:  If the beneficiary is not receiving benefits, based on the Exceptioncited in M21-1, Part III, Subpart v, 9.B.2.c, remove the two paragraphs that discuss the time limit for requesting a hearing.

III.v.9.B.3.c.  Notifying an Adult Beneficiary Who Is in the Care of a Medical Center or Institution

Use the table below to determine to whom to send the notice of a proposed rating of incompetency if the beneficiary is an adult in the care of a medical center or institution, per 38 CFR 3.852.
If the beneficiary is …
Then …
a patient in a medical center
send a copy of the notice to the chief officer of the hospital or domiciliary.
  • institutionalized in a medical center
  • in a non-bed-care status on authorized or unauthorized absence, or
  • a member of a domiciliary
  • send a copy of the notice to the chief officer of the institution, and
  • request that a psychiatric social worker (or other professional staff member designated by the chief officer) inform the patient orally about the proposed action and of his/her due process rights.

III.v.9.B.3.d.  Notifying a Beneficiary Who Is a Minor

If VA is making payments on behalf of a minor child, and a decision regarding the child’s competency is needed when the child reaches age 18, send notice of a proposed rating of incompetency to
  • the current fiduciary that a fiduciary hub has certified to receive payments for the child, or
  • a custodian that is recognized as a parent under 38 CFR 3.850(c).

III.v.9.B.3.e.  Requirement for Oral Notification of the Beneficiary

After sending notice of a proposed rating of incompetency to a beneficiary, or after receiving a court decree of incompetency or a court appointment of a fiduciary by reason of a beneficiary’s incompetency, ROs must make reasonable efforts to contact the beneficiary by telephone for the purpose of orally informing him/her of the following three points:
  • a determination of incompetency will prohibit the purchase, possession, receipt, or transportation of a firearm or ammunition
  • violation of the prohibition could result in a fine and/or imprisonment, and
  • the beneficiary may apply for relief from the referenced prohibition by submitting a request to VA.
Notes:
  • “Reasonable efforts” generally consist of
    • an initial attempt to contact the beneficiary by telephone, using his/her current telephone number, and
    • at least one follow-up attempt if the initial attempt is unsuccessful.
  • Exercise discretion when discussing the proposed rating with the beneficiary, as this type of notice could be upsetting to him/her.
  • A voice-mail message is not considered adequate oral notification.
  • If a current, valid telephone number is not available for the beneficiary, use reasonable efforts to secure one, which may include
    • searching the telephone directory
    • reviewing applicable hospital records, and/or
    • contacting the beneficiary’s representative.

III.v.9.B.3.f.  Documenting  Compliance With the Requirement for Oral Notification

Document compliance with the requirement to provide the oral notification referenced in M21-1, Part III, Subpart v, 9.B.3.e on VA Form 27-0820, Report of General Information.
If initial and follow-up attempts to contact the beneficiary by telephone areunsuccessful, document the actions taken on VA Form 27-0820.
Notes:
  • If telephone contact with the beneficiary is made, but oral delivery of the notice is unsuccessful because, for example, the beneficiary is physically or mentally incapacitated, fully explain the circumstances on VA Form 27-0820.
  • If the beneficiary later reports never receiving or not understanding the initial oral notice, provide it again and document the action on VA Form 27-0820.

III.v.9.B.3.g.  Handling  Evidence VA Receives During the Due Process Period

The table below describes the process for handling evidence regarding a beneficiary’s competency that VA receives within 60 days of the date of the notice referenced in M21-1, Part III, Subpart v, 9.B.3.b.
Exception:  Follow the process outlined in M21-1, Part III, Subpart v, 9.B.3.i, if VA receives evidence regarding a beneficiary’s competency in connection with a hearing the beneficiary requested.
Stage
Description
1
The fiduciary hub of jurisdiction
  • changes the EP 590 to whichever of the following two EPs is appropriate:
    • 600CI, with the claim label Competency Issue (for awards of disability compensation), or
    • 600IDPMC, with the claim label PMC Incompetency Determination (for awards of pension)
  • adds Competency as a contention
  • adds a tracked item that lists the evidence VA received and the date VA received it, and
  • changes the claim status to Ready for Decision.
2
The rating activity of the RO to which the EP 600 is assigned evaluates the evidence and makes a final determination regarding the beneficiary’s competency.
3
The actions described in Stages 4 and 5 of the process outlined inM21-1, Part III, Subpart v, 9.B.3.i, take place.
Important:  The RO to which the EP 600 was assigned takes the actions described in Stage 4.  This RO may or may not be the RO of jurisdiction (ROJ) (the RO with geographic jurisdiction based on the beneficiary’s address).

III.v.9.B.3.h.  Responding to a Beneficiary’s Request for a Hearing

If a beneficiary requests a personal hearing, advise the beneficiary that
  • he/she may bring witnesses to the hearing
  • witness testimony will be included in the record
  • he/she may be represented by an
    • accredited representative of a Veterans organization or other service organization recognized by the VA at no charge, or
    • attorney the beneficiary has appointed and VA has recognized
  • VA furnishes the hearing room, provides hearing officials, and prepares the transcript or summary of the proceedings, and
  • VA cannot pay any other expenses associated with the hearing.
Note:  If the beneficiary expresses a desire for representation but has not yet designated a representative, help the beneficiary designate a representative by furnishing him/her the appropriate form from among those listed in M21-1, Part I, 3.A.2.c.
References:  For more information on

III.v.9.B.3.i.  Processing a Beneficiary’s Request for a Hearing

The table below describes the process for handling a beneficiary’s request for a hearing that VA receives within 60 days of the date of the notice referenced in M21-1, Part III, Subpart v, 9.B.3.b.
Note:  The ROJ is responsible for processing to completion (Stages 2 through 4 in the table below) a case in which a beneficiary requests a hearing in response to notice of a proposed rating of incompetency.
Stage
Description
1
The fiduciary hub of jurisdiction
  • changes the EP 590 to an EP 600
  • applies the more appropriate of the following two claim labels:
    • Competency Issue (for awards of disability compensation claims), or
    • PMC Incompetency Determination (for awards of pension claims), and
  • adds Local Hearing as a special issue.
Note:  The ROJ is responsible for monitoring the status of the EP 600.
2
The ROJ schedules and holds a hearing according to the instructions inM21-1, Part III, Subpart v, 9.B.3.j.
3
The ROJ’s rating activity makes a final determination regarding the beneficiary’s competency.
4
The ROJ takes the actions described in the table below.
If the rating activity determines the beneficiary is …
Then the authorization activity …
competent
  • promulgates the final rating decision
  • completes any necessary award actions
  • sends a decision notice to the beneficiary, and
  • ensures all documentation is associated with the claims folder.
incompetent
  • promulgates the final rating decision
  • completes any necessary award actions
  • sends a decision notice to the beneficiary
  • establishes an EP 290,FID-Fiduciary Adjustment
  • completes and uploadsVA Form 21-592 into the beneficiary’s eFolder, and
  • transfers the EP 290 to the fiduciary hub of jurisdiction.

5

If the rating activity determined the beneficiary is incompetent, the fiduciary hub of jurisdiction
  • appoints a fiduciary, and
  • releases any retroactive benefits due the beneficiary, if appropriate.
References:  For more information on

III.v.9.B.3.j.  Conducting a Hearing Prior to a Final Determination

Designated hearing officials conduct hearings in accordance with the instructions in M21-1, Part I, 4.4.
Due to the nature of the hearings referenced in this section, hearing officials must be flexible in allowing a beneficiary’s next of kin (or any other person of the beneficiary’s choosing) to participate in the hearing on the beneficiary’s behalf or to assist the beneficiary during the hearing.

III.v.9.B.3.k.  Processing a Waiver of Due Process Concerning a Proposed Rating of Incompetency

If VA receives a waiver of due process concerning a proposed rating of incompetency,
  • associate the waiver with the beneficiary’s claims folder
  • notify the fiduciary hub of jurisdiction by sending an e-mail with the subject line Due Process Waived- Incompetency Proposal, and
  • include the following information in the body of the e-mail:
    • the beneficiary’s name and claim number, and
    • the date VA received the waiver.
Note:  The fiduciary hub will maintain jurisdiction of the pending EP 590.
Reference:  For more information on the jurisdiction of individual fiduciary hubs, see M21-1, Part III, Subpart v, 9.A.1.d.

III.v.9.B.3.l.  Proposals on Which a Beneficiary Takes No Action

If a beneficiary does not respond to notice of a proposed rating of incompetency within 65 days of the date of the notice, the fiduciary hub of jurisdiction makes a final decision regarding the beneficiary’s competency based on the evidence of record.

III.v.9.B.3.m.Processing a Legacy NOD That VA Receives After Issuing Notice of a Final Rating of Incompetency

The ROJ handles all legacy appeals of incompetency determinations.
If VA receives a legacy NOD after issuing notice of a final rating of incompetency, the ROJ must
Important:  When preparing the SOC, carefully consider whether the inclusion of certain information could be detrimental to the beneficiary’s state of mind.  A decision to exclude information on this basis must be supported by a physician’s opinion and advice concerning the appropriate way to communicate the information to the beneficiary.
Note:  Fiduciary hubs are responsible for handling all legacy appeals, supplemental claims, and higher-level reviews regarding the selection of a fiduciary.
References:  For more information on

4.  Information About the Brady Act


Introduction

This topic contains information about the Brady Act, including


Change Date

Feburary 19, 2019

III.v.9.B.4.a.  Effect of the Brady Act on Incompetent Beneficiaries

The Brady Act of 1993, Public Law (PL) 103-159, prohibits the sale of firearms to certain individuals, including beneficiaries the VA determines are incompetent.  In compliance with this act, VA reports the names of incompetent beneficiaries to the Federal Bureau of Investigations (FBI), which then adds the names to a database called the National Instant Criminal Background Check System (NICS).  Gun dealers must check NICS for the name of a potential buyer before selling him/her a firearm.

III.v.9.B.4.b.  Notifying Affected Beneficiaries

Affected beneficiaries must be notified of the effects of the Brady Act in the
  • notice of proposed adverse action that VA sends to communicate the rating activity’s proposal of incompetency, and
  • final/contemporaneous decision notice that VA sends to communicate a final rating of incompetency.
The following letter types and templates contain text that adequately explains the prohibitions the Brady Act imposes:
  • Personal Computer Generated Letters (PCGL) GP5 Pre:  Incompetency
  • PCGL GP6 Post:  Incompetency
  • VBMS Proposed Incompetency Letter
  • decision notices for final ratings of incompetency that the Redesigned Automated Decision Letter application in VBMS generates.
In the event a claims processor uses an alternative correspondence template to prepare notice of a proposed rating of incompetency, he/she must include in the notice the following text:
The Brady Handgun Violence Prevention Act prohibits you from purchasing, possessing, receiving or transporting a firearm or ammunition based upon our determination that you are incompetent to handle your VA funds.  You may be fined and/or imprisoned if you knowingly violate this law.
You may apply to VA for relief of firearms prohibitions imposed by the law by submitting your request to the address at the top of this letter on the enclosed VA Form 21-4138, Statement in Support of Claim.  VA will determine whether such relief is warranted.
Reference:  To view additional text that must be included in a notice of a proposed rating of incompetency, see M21-1, Part III, Subpart v, 9.B.3.b.

III.v.9.B.4.c.  Relief From the Brady Act Requirements

The NICS Improvement Amendments Act of 2007 (NIAA) contains an amendment to the Brady Act that obligates VA to provide incompetent beneficiaries the opportunity to request relief from the reporting requirements the Brady Act imposes.  The NIAA places the responsibility for administering the relief program on the agency that provided NICS with the name of the individual who is requesting relief.
Because relief from the reporting requirements of the Brady Act is not a “benefit” under Title 38, principles common to VA’s adjudication process, such as “benefit of the doubt” and “duty to assist” (as demonstrated in ordering examinations or securing private medical records) do not apply.  The burden of proof for these requests resides with the beneficiary, and failure to meet that burden is sufficient reason for denying the request.
Notes: 
  • Requests for relief from the reporting requirements of the Brady Act must be clear and explicit.
  • Do not infer or interpret
    • a request for relief as a claim for reassessment of the beneficiary’s competency, or
    • a claim of competency as a request for relief.
  • A grant by VA of a request for relief serves only to lift the prohibition against purchasing, possessing, receiving or transporting a firearm or ammunition under the Brady Act.  Refer beneficiaries that are seeking relief from the prohibition against handling explosives under the Safe Explosives Act of 2003 to the following website: https://www.atf.gov/explosives/apply-relief-explosives-disability.

III.v.9.B.4.d.  Initial Steps to Take Following Receipt of a Request for Relief

Follow the steps described in the table below following receipt of a beneficiary’s request for relief from the requirements of the Brady Act.
Step
Action
1
Has VA already determined by rating decision that the beneficiary is incompetent?
  • If yes, proceed to Step 7.
  • If no, proceed to the next step.
2
Is VA using a paper claims folder to process the beneficiary’s request?
  • If yes, reverse-file the relief request in the center section of the paper claims folder.
  • If no, add a note in VBMS that indicates a relief request is pending.
3
  • Flash the claims folder with an alert that the relief request must be processed after the rating activity determines whether the beneficiary is competent.
  • Take no further action until the rating activity makes its determination.
4
Did the rating activity determine the beneficiary is incompetent?
  • If yes, proceed to Step 15.
  • If no, proceed to the next step.
5
Ensure the corresponding rating decision contains the following statement under Reasons for Decision:
We received your request for relief from the Department of Justice reporting requirements contained in the Brady Handgun Violence Prevention Act.
We have determined you can manage your VA benefits. Therefore, it is not necessary to provide you a decision on your request for relief.
6
  • Associate copies of all documentation related to the request with the beneficiary’s claims folder.
  • Disregard the remaining steps in this table.
Note:  If VA processed the request using a paper claims folder, file down the referenced documentation on the right flap of the folder.
7
Did VA receive the request for relief along with a decision review request regarding VA’s decision that the beneficiary is incompetent?
  • If yes, proceed to the next step.
  • If no, proceed to Step 15.
8
Establish an appropriate EP to control the decision review election.
9
Undertake any necessary or appropriate development to reassess the beneficiary’s competency.
10
Is VA using a paper claims folder to process the beneficiary’s request?
  • If yes, reverse-file the relief request in the center section of the paper claims folder.
  • If no, add a note in VBMS that indicates a relief request is pending.
11
  • Flash the claims folder with an alert that the relief request must be processed as soon as the rating activity determines whether the beneficiary is still incompetent.
  • Take no further action until the rating activity makes its determination.
12
Did the rating activity determine the beneficiary is still incompetent?
  • If yes, proceed to Step 15.
  • If no, proceed to the next step.
13
Ensure the corresponding rating decision contains the following statement under Reasons for Decision:
We received your request for relief from the Department of Justice (DoJ) reporting requirements contained in the Brady Handgun Violence Prevention Act.
We have determined you can manage your VA benefits. Therefore, it is not necessary to provide you a decision on your request for relief.
VA will inform DoJ of your changed status, and DoJ will remove your information from the National Instant Criminal Background Check System.
14
  • Associate copies of all documentation related to the request with the beneficiary’s claims folder.
  • Disregard the remaining steps in this table.
 Notes:
  • If VA processed the request using a paper claims folder, file down the referenced documentation on the right flap of the claims folder.
  • Once each month, the Hines Information Technology Center uploads to the FBI Law Enforcement Enterprise Portal a file that identifies those beneficiaries whose prior rating of incompetency VA has changed (by rating decision) during the past month.  The FBI typically removes the names of these beneficiaries from NICS within two months.
  • Contact the NICS point of contact (POC) by e-mail (VAVBAWAS/CO/NICS) for assistance when, for example,
    • VA receives a congressional inquiry regarding a beneficiary whom VA has rated competent but whose name remains on NICS
    • a beneficiary whom VA has rated competent notifies VA that his/her name remains on NICS, or
    • a VA employee discovers that the name of a beneficiary whom VA rated competent at least six months ago remains on NICS.
15
Establish EP 290, using the NICS Relief Request claim label.
16

17

Did the beneficiary return the signed consent form within 30 days?
  • If yes, proceed to Step 20.
  • If no, proceed to the next step.
18
Deny the beneficiary’s request for relief, using the NICS Relief Denialletter in PCGL.
19
  • Associate copies of all documentation related to the request with the beneficiary’s claims folder.
  • Disregard the remaining steps in this table.
Note:  If VA processed the request using a paper claims folder, file down the referenced documentation on the right flap of the claims folder.
20
Did the beneficiary provide a statement from his/her primary mental-health physician that assesses the beneficiary’s mental health status over the last five years?
  • If yes, proceed to the next step.
  • If no, return to Step 18.
21
Did the beneficiary provide evidence of his/her reputation?
  • If yes, proceed to the next step.
  • If no, return to Step 18.
22
Follow the instructions in M21-1, Part III, Subpart v, 9.B.4.g to decide whether to grant the beneficiary’s request for relief.

III.v.9.B.4.e.  Required Paragraphs for the NICS Relief Development Letter

If development action is necessary under M21-1, Part III, Subpart v, 9.B.4.d to decide a request for relief from the Brady Act requirements, include the following paragraphs in a letter to the beneficiary.
We received your request for relief from the Department of Justice reporting requirements contained in 18 U.S.C. 922(d)(4) and (g)(4), The Brady Handgun Violence Prevention Act of 1993 (The Brady Act), Public Law 103-159. VA must report to the National Instant Criminal Background Check System (NICS) individuals whom VA determines to be unable to manage their own financial affairs.
Pursuant to 18 U.S.C. 925(c) and 101(c)(2)(A) of the NICS Improvements Amendment Act of 2007, Public Law 110-180, after receiving your request for relief, VA is obligated to decide whether you are eligible to receive relief from the reporting requirements of the Brady Act. This letter contains information about what we will do with your request and what you can do to help us decide it.
We may grant relief if clear and convincing evidence shows the circumstances regarding your disability and your record and reputation are such that you are not likely to act in a manner dangerous to yourself or others, and the granting of relief is not contrary to public safety and/or the public interest. In order for us to process your request, you must submit the required evidence outlined below within 30 days from the date of this letter. If we do not receive all of the required evidence, your request for relief will be denied.
What Evidence Should You Provide?
To support your claim for relief, you must submit all of the following evidence:
  • A statement from your primary mental-health physician that
    • assesses your mental health status over the last five years
    • addresses whether you
      • currently pose, or have ever posed, a danger to yourself or others, and
      • would pose a danger to yourself or others if allowed to purchase and possess a firearm, and
    • is dated within 90 days prior to your request for relief.
  • Medical information addressing the extent of your mental health symptoms and whether or not you are likely to act in a manner dangerous to yourself or to the public.
  • Evidence of your reputation, through character witness statements, testimony, or other character evidence. This may include statements from clergy, law enforcement officials, and/or persons that are aware of your reputation in the community and show that the granting of relief would not be contrary to the public interest. (Statements or records from law enforcement officials may be provided by the Federal Bureau of Investigation (FBI); the Bureau of Alcohol, Tobacco, and Firearms (ATF); the Attorney General; or other local law enforcement agencies.)
What Should a Character Witness Statement Include?
 
The character witness statements referenced above should originate from individuals with whom you have had recent and frequent contact and must contain all of the following elements: 
  • name, address, and telephone number of the person preparing the statement
  • description of the preparer’s relationship to you, including an approximate account of the frequency with which you and he/she maintain contact, and
  • indication as to whether you have a reputation for violence or would pose a danger to yourself or others if permitted to purchase and possess a firearm.
A signed consent form that is attached to this letter that will allow us to procure your criminal history.
You may also submit documentation that a court, board, or commission has found you competent.

III.v.9.B.4.f.  Consent Form That Must Accompany the NICS Relief Development Letter

Attach the consent form shown below to the NICS relief development letter referenced in M21-1, Part III, Subpart v, 9.B.4.e.
Consent for VA to Obtain a Criminal History for the Purpose of NICS Relief

I understand that the Department of Veterans Affairs (VA) may seek to obtain my criminal background history during consideration of my request for relief from the reporting requirements contained in 18 U.S.C. 922(d)(4), The Brady Handgun Violence Prevention Act of 1993, Public Law 103-159, and National Instant Criminal Background Check System (NICS) Improvements Amendment Act of 2007, Public Law 110-180.  I consent to VA seeking this information from any and all sources and give permission for the release of my criminal background history and any other associated documents to VA.  I further waive my rights under the Privacy Act, 5 U.S.C. 552a(b), with regard to the release of this information to VA from any federal or state agency.
Name:  _________________________
Claim Number:  _________________________
Signature of Veteran:  _________________________
Date:  _________________________

III.v.9.B.4.g.  General Information About Decisions to Grant or Deny a Request for Relief

This block contains general information about decisions to grant or deny a request for relief from the requirements of the Brady Act.
  • Claims processors are responsible for
    • deciding whether to grant a request for relief, and
    • following the instructions in M21-1, Part III, Subpart v, 1.A.3 for preparing a corresponding administrative decision titled NICS Relief Request.
  • When deciding a request for relief, claims processors must consider not only the beneficiary’s desire to own firearms and/or ammunition, but also the safety of the beneficiary and his/her family and community.
  • RO Directors must approve administrative decisions on requests for relief after concurrence by the Veterans Service Center Manager or his/her designee.
  • Relief requests are not matters which fall within the scope of Title 38 of the U.S.C.; therefore, decisions that deny relief are not subject to review under 38 CFR 3.2500 or by the Board of Veterans’ Appeals.  They are, however, subject to review in Federal district court.  For this reason, all such decisions must contain a detailed explanation of the basis for denial.
Reference:  For more information on appellate rights for denials of relief requests, see 18 U.S.C. 925(c).

III.v.9.B.4.h.  Evidence Claims Processors Must Consider When Deciding a Request for Relief

Claims processors must consider the evidence listed in the table below when deciding whether to grant a request for relief from the reporting requirements of the Brady Act.
The evidence must meet the criteria shown in the right column of the table.  If it does not, claims processors must undertake development with the beneficiary and/or source(s) of the evidence to obtain any missing details or information.
Evidence
Criteria the Evidence Must Meet
a current statement from the beneficiary’s primary mental-health physician that assesses the beneficiary’s current and past mental health status
  • A physician’s statement is considered “current” if he/she conducted the assessment on which the statement is based within the 90-day period that preceded the beneficiary’s request for relief.
  • The assessment must cover the five-year period that immediately preceded the beneficiary’s request for relief.
  • The physician must provide sufficient detail in his/her statement for VA to determine whether the beneficiary
    • has ever been a danger to him/herself or others, and
    • would be a danger to him/herself or others if allowed to purchase and possess a firearm.
evidence regarding the beneficiary’s reputation
Statements regarding the beneficiary’s reputation from individuals other than the beneficiary must
  • be prepared by someone who
    • has had recent and frequent contact with the beneficiary, and
    • can credibly attest to the beneficiary’s reputation
  • contain the name, address, and telephone number of the person providing the statement
  • describe the person’s relationship with the beneficiary and the frequency of their contact, and
  • indicate whether the beneficiary
    • has a reputation for violence, and
    • would be a danger to him/herself or others if allowed to purchase and possess a firearm.

III.v.9.B.4.i.  Circumstances Under Which Claims Processors Must Deny a Request for Relief

Claims processors must deny a request for relief from the requirements of the Brady Act if the evidence of record shows the beneficiary would be a danger to him/herself or others if VA granted the request.
The evidentiary standard for denying a request for relief is “clear and convincing.”  This standard is met if any of the following is reflected in the beneficiary’s record:
  • an assessment performed by the beneficiary’s primary mental-health physician that indicates the beneficiary would be a danger to him/herself or others if VA granted the request
  • a diagnosis of mental disability with symptoms that include the presence of suicidal or homicidal ideations
  • a diagnosis of substance abuse with symptoms that would render the beneficiary a danger to him/herself or others
  • a reputation for violence, which a claims processor has confirmed by personally contacting the person that cited the reputation
  • conviction of a felony unless the beneficiary presents evidence that, notwithstanding the felony conviction, his/her right to possess a firearm has been restored
  • conviction of a misdemeanor in the past five years for committing or attempting to commit a violent offense
  • pending felony or misdemeanor charge for committing or attempting to commit a violent offense, or
  • a charge for a violent offense that has not been brought to trial because a court, board, or commission has determined the beneficiary lacks the mental capacity to proceed with a trial unless
    • competency has been restored, or
    • the beneficiary has been rehabilitated through any procedure available under the law.
Note:  A “violent offense” includes, but is not limited to, menacing, stalking, assault, or battery.
Reference:  For more information on the clear and convincing evidentiary standard, see M21-1, Part III, Subpart iv, 5.A.1.i.

III.v.9.B.4.j.  Process for Considering a Grant of Relief

If clear and convincing evidence to justify denying a request for relief of the requirements of the Brady Act (as discussed in M21-1, Part III, Subpart v, 9.B.4.i) does not exist, claims processors must consider granting the request by following the process described in the table below.
Important:  The evidentiary standard for granting relief is also “clear and convincing.”  To meet this standard, the evidence of record must affirmatively, substantially, and specifically show
  • the beneficiary is not likely to act in a manner dangerous to the public, and
  • granting relief will not be contrary to the public interest.
Stage
Description
1
The claims processors refers the beneficiary’s case to the rating activity.
2
The rating activity reviews the medical evidence of record to determine whether it contains any indication the beneficiary would be a danger to him/herself or others if VA granted the request.
3
The rating activity
4
  • If the rating activity determined the beneficiary would be a danger to him/herself or others if VA granted the request,
    • the claims processor prepares an administrative decision that denies the beneficiary’s request, and
    • the process ends here.
  • If the rating activity determined there is nothing in the medical evidence of record indicating the beneficiary would be a danger to him/herself or others if VA granted the request, the claims processor e-mails a request for a copy of the beneficiary’s criminal history report to the NICS point of contact (POC), whose e-mail address isVAVBAWAS/CO/NICS.
Notes:
  • The e-mail must include
    • an electronic copy of the signed consent form shown in M21-1, Part III, Subpart v, 9.B.4.f 
    • all evidence considered for the possible granting of relief
    • the beneficiary’s name and file number, and
    • the date VA received the request for relief.
  • The subject line of the e-mail must read Criminal History Needed.
  • The NICS POC will
    • review the e-mail and the criminal history, and
    • contact the claims processor if the POC feels it is necessary to review evidence the RO considered in making its decision.
5
Following receipt of the criminal history report and concurrence from the NICS POC, the claims processor returns the case to the rating activity for reevaluation of the medical evidence in light of the beneficiary’s criminal history.
Note:  Questions regarding the content of criminal history reports may be forwarded by e-mail to VAVBAWAS/CO/NICS.
6
The rating activity
  • summarizes the evidence it reviewed and documents its conclusion on VA Form 21-0961, and
  • returns the case to the claims processor.
7
The claims processor
  • prepares an administrative decision that
    • reflects the determination made by the rating activity
    • cites all the evidence the claims processor and rating activity considered, and
  • follows the instructions in M21-1, Part III, Subpart v, 9.B.4.k.
Important:  The RO Director must sign off on any decision to grant relief.

III.v.9.B.4.k.  Actions to Take After Making a Decision on a Request for Relief

After making an administrative decision on a request for relief from the requirements of the Brady Act, claims processors must
  • clear the pending EP 290
  • associate with the beneficiary’s claims folder the decision and all evidence/information gathered in connection with it, and
  • follow the instructions in the table below.
Note:  If VA is using a paper claims folder to process the request for relief, file down the documentation referenced in the preceding paragraph on the right flap of the folder.
If relief is …
Then the claims processor must …
denied
notify the beneficiary, using the NICS Relief Denial letter in PCGL.
granted
  • notify the beneficiary, using the NICS Relief Grantletter in PCGL
  • e-mail notice of the grant under the subject headingNICS Relief Grant to VAVBAWAS/CO/NICS, and
  • include the following information about the beneficiary in the body of the e-mail:
    • name
    • claim number
    • SSN(if different than the claim number)
    • date of birth
    • address
    • telephone number, and
    • date of the decision to grant relief.
Note:  Following receipt of the e-mail, the staff that monitors the NICS mailbox notifies the FBI that VA has granted the beneficiary’s request for relief.  Within approximately two months of receiving notice, the FBI will remove the beneficiary’s name from NICS.

5.  SDP


Introduction

This topic contains information on SDP, including

Change Date

May 24, 2018

III.v.9.B.5.a.  Authorization of SDP by a Fiduciary Hub

Under 38 CFR 13.56, a fiduciary hub may authorize SDP to
  • Veterans rated incompetent, or
  • any other adult beneficiary for whom appointment of a fiduciary has been requested based on a VA rating or judicial determination of incompetency.
If the fiduciary hub concludes that such method of payment is consistent with the beneficiary’s capacity and affords a reasonable protection of the beneficiary’s interests, the fiduciary hub indicates its authorization of SDP on VA Form 21-555.

III.v.9.B.5.b.  Confirmation of SDP Status Following a Loss of Entitlement

If an incompetent beneficiary loses entitlement to benefits that VA had been paying directly to him/her based on a fiduciary hub’s authorization of SDP, and VA later restores entitlement, do not resume the payment of benefits directly to the beneficiary without concurrence from a fiduciary hub.
If necessary, request a current VA Form 21-555 by:
  • preparing VA Form 21-592 according to the instructions in M21-1, Part III, Subpart v, 9.A.1.c
  • uploading an electronic copy of the form into the beneficiary’s eFolder, and
  • notifying the fiduciary hub of jurisdiction via e-mail that action is pending on the form.

III.v.9.B.5.c.  Fiduciary Hub Responsibilities Following the Authorization of SDP

After a fiduciary hub authorizes SDP, it is responsible for
  • annotating the award document with the following notation:  VA Form 21-555 [date] supervised direct payment, and
  • performing the following actions on the 601 CHANGE OF FIDUCIARY screen in Share if the beneficiary is a Veteran:
    • updating the PRINCIPLE GUARDIANSHIP FOLDER LOC screen, and
    • selecting the SUPERVISED DIRECT PAY radio button.

III.v.9.B.5.d. Processing and Controlling an SDP Award

The table below contains instructions for processing and controlling an SDP award.
Step
Action
1
Process an award that pays the beneficiary the full monthly rate of benefits to which he/she is entitled but withholds all retroactive benefits VA owes the beneficiary.  (Payment of less than the full monthly rate is prohibited.)
If the beneficiary is an individual receiving benefits under an apportioned award, treat the difference between the monthly benefit VA withheld and the full amount to which the beneficiary is entitled as a withholding on the primary beneficiary’s award.
Note:  Enter the withholding on the OTHER ADJUSTMENTS tab on the AWARD ADJUSTMENTS screen.
Reference:  For more information about processing withholdings, see the
2
Establish a diary that will expire six months after the date of the SDP certification.
3
After the six-month period ends, ask the fiduciary hub to furnish a certification for release of the withheld benefits to either
  • the beneficiary, or
  • a fiduciary.
4
Did the fiduciary hub certify an extension of the period of time during which VA would continue to withhold payment of the retroactive benefits referenced in Step 1?
  • If yes, proceed to the next step.
  • If no,
    • release the withheld, retroactive benefits referenced in Step 1, and
    • disregard the remaining steps in this table.
5
Does the period of time referenced in Step 4 extend beyond the one-year time limit during which VA may withhold the retroactive benefits referenced in Step 1?
  • If yes,
    • continue to withhold the retroactive benefits, and
    • proceed to the next step after the one-year time limit expires.
  • If no, proceed to the Step 7.
6
Release the withheld, retroactive benefits referenced in Step 1 and disregard the remaining steps in this table.
7
Establish a diary that will expire 30 days before the end of the extended time period referenced in Step 4.
8
  • After the extended time period referenced in Step 4 ends, ask the fiduciary hub to furnish a certification for release of the withheld benefits to either
    • the beneficiary, or
    • a fiduciary.
  • Return to Step 4 after the fiduciary hub responds to the request.
Reference:  For more information about establishing diaries, see the

6.  Processing Rating Decisions That Conclude a Beneficiary VA Previously Rated Incompetent Is Now Competent


Change Date
February 19, 2019

III.v.9.B.6.a.  Processing Rating Decisions That Conclude a Beneficiary VA Previously Rated Incompetent Is Now Competent

The table below contains instructions for processing rating decisions that conclude a beneficiary VA previously rated incompetent is now competent.
Step
Action
1
Is VA currently paying benefits to the beneficiary through a fiduciary or VA medical center payee?
  • If yes, proceed to the next step.
  • If no, proceed to Step 4.
2
Contact the beneficiary to obtain the information necessary to update the fields in the DD/EFT (direct deposit/electronic funds transfer) block on the 601 CHANGE OF FIDUCIARY PROCESSING screen in Share.
Note:  To access the 601 CHANGE OF FIDUCIARY PROCESSING screen, select Change of Fiduciary from the list of commands on the VBA READY screen in Share.
3
Update the fields in the DD/EFT block with information obtained from the beneficiary in Step 2.
4
Select the radio button labeled Pay Direct in the FIDUCIARY DECISION block on the 601 CHANGE OF FIDUCIARY PROCESSING screen in Share.
Note:  To access the 601 CHANGE OF FIDUCIARY PROCESSING screen, select Change of Fiduciary from the list of commands on the VBA READY screen in Share.
5
Verify that the routing of all future payments is correct.
6
Promulgate the rating decision.
7 Release to the beneficiary any retroactive benefits VA was withholding because of the prior rating of incompetency.
8
Notify the beneficiary of the rating decision.
Note:  If a request for relief from the reporting requirements of the Brady Act is pending, notify the beneficiary that the latest rating decision renders moot his/her request.
Reference:  For more information about the reporting requirements of the Brady Act, see M21-1, Part III, Subpart v, 9.B.4.
9
Notify the fiduciary hub of jurisdiction (by e-mail) of the rating decision.
Reference:  For more information on the jurisdiction of individual fiduciary hubs, see M21-1, Part III, Subpart v, 9.A.1.d.
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