Inconsistent Disability Benefits Questionnaires May Lead to Inaccurate Mental Competency Determinations

While assessing an anonymous allegation of wrongdoing involving two fiduciaries, the VA Office of Inspector General (OIG) discovered inconsistencies in the disability benefits questionnaires the Veterans Benefits Administration (VBA) uses to elicit medical professionals’ assessments of veterans’ mental competency. VBA uses disability benefits questionnaires when inquiring about a veteran’s capability to manage their finances. Two of the four questionnaires included the regulatory definition of mental incompetency, but none of them posed the question for assessing mental competency in a way that matches the regulatory definition wording. Language discrepancies on the questionnaire can lead medical examiners to provide inconsistent competency decisions for veterans. According to 38 C.F.R. § 3.353(a), which VA promulgated, “A mentally incompetent person is one 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 regulation also states, “Unless the medical evidence is clear, convincing and leaves no doubt as to the person’s incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities.” When a disability medical examiner responds to the mental competency question, the response is used as evidence and can influence a rating veterans service representative’s decision regarding that veteran’s ability to manage their own affairs, including benefit payments. Consistency in the disability benefits questionnaires helps support appropriate and equitable outcomes. This memorandum is meant to convey the information necessary for VBA to determine if additional actions are warranted.