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Updated Oct 15, 2024

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

X.ii.6.D.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 has determined the Veteran is incompetent, and
  • provide (in the same section) the name and address of the Veteran’s fiduciary.
Reference:  For more information on inputting examination requests, see M21-1, Part IV, Subpart i, 2.A.9 and 10.

X.ii.6.D.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 benefits
  • a letter to the fiduciary explaining
    • that the Veteran failed to report for a Department of Veterans Affairs (VA) examination
    • why the examination was necessary
    • that the Veteran may notify VA of willingness 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 benefits, and
  • an e-mail to the fiduciary hub (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 IV, Subpart ii, 2.B.1.

X.ii.6.D.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 VA or non-VA institution, see M21-1, Part X, Subpart ii, 6.F.

X.ii.6.D.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 their 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 X, Subpart ii, 6.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

 October 15, 2024

X.ii.6.D.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

X.ii.6.D.2.b.  Processing Medical Evidence of Incompetency That Does Not Involve a Judicial Determination
Follow the steps 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.
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 X, Subpart ii, 6.B.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.  Go to the next step after the rating activity refers the decision for promulgation.
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
Promulgate the rating EP and send the proposed incompetency letter.
Reference:  For more information on the proposed incompetency letter, see
5
Authorize the rating EP.
Note:  If the proposed incompetency letter was not previously sent, the letter must be sent to the beneficiary at this time.
6
Did the system automatically establish EP 590, Due Process for Incompetency?
  • If yes, go to the next step.
  • If no,
    • manually establish the EP, and
    • go to the next step.
Note:  National Work Queue (NWQ) will transfer the EP 590 automatically to the hub of jurisdiction the following day.  Hubs will provide oral notification of the Brady Handgun Violence Prevention Act (Brady Act) restrictions upon receipt of the EP.
Reference:  For more information on the date of claim for an EP 590, Due Process for Incompetency, see M21-4, Appendix B, 2.
7
Authorization will create and finalize the proposed incompetency letter (if applicable) under the EP 590.
Important:  The proper due process tracked item must be added to the EP 590 by authorization regardless of the due process letter-type used.
8
Ensure the decision notice (if applicable) and the proposed incompetency letter is/are associated with the claims folder.
Important:  Process an award or award adjustment according to the instructions in M21-1, Part X, Subpart ii, 6.D.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
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 X, Subpart ii, 6.A.1.f.

X.ii.6.D.2.c.  Claimants Who Become Entitled to Benefits Before the Rating Activity Makes a Final Determination Regarding Competency
Use the table below to determine the actions to take if, at any point during the process described in M21-1, Part X, Subpart ii, 6.D.2.b, the rating activity determines a claimant is entitled to an original award of benefits, a reinstatement of benefits, or increased benefits.
Exception:  Under certain circumstances, which should be rare, not taking the action described in the table below 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 income or spending it on frivolous activities on the same day it is received, it may be in the beneficiary’s best interest to withhold benefits until the
  • rating activity determines the beneficiary is competent, or
  • 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 hub of jurisdiction assigns the beneficiary a fiduciary.
If the rating activity determined the Veteran is entitled to …
Then …
  • an original award of benefits, or
  • a reinstatement of benefits
generate an award, without waiting for resolution of the competency issue, that withholds benefits until the first day of the current month.
increased benefits
process an award adjustment, without waiting for resolution of the competency issue, that withholds the increase in benefits until the date shown in the LAST PAID DATE field on the AWARD INFORMATION tab in Share.

X.ii.6.D.2.d. Actions the Authorization Activity Takes Following Receipt of a Recommendation for Payment From a Hub
When a hub makes a recommendation for payment, its own authorization activity typically processes the recommendation.  When the hub’s authorization activity is unable to process such a recommendation, the hub refers the recommendation to a regional office (RO) for processing.
Use the table below to determine the actions ROs must take after receiving a recommendation for payment from a hub.
If the 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 hub a copy of the award document, and
    • notify the beneficiary’s fiduciary of the award adjustment and review rights with regard to it, per M21-1, Part X, Subpart ii, 3.B.4.
  • There is no requirement to notify the beneficiary’s fiduciary unless the RO adjusted the beneficiary’s award.
  • concludes the beneficiary is competent to manage the funds payable, and
  • furnishes the RO with certification of supervised direct pay (SDP) on VA Form 21P-555
  • authorize the SDP award in accordance with the
  • refer the following to its rating activity:
    • a statement of the finding of competency by the hub, and
    • all evidence upon which the 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 hub a copy of the award document, and
    • notify the beneficiary of the final determination and review rights, per M21-1, Part VI, Subpart i, 1.B, or
  • remains incompetent, the RO must
    • continue the SDP, and
    • notify the hub of the rating decision.
Reference:  For more information on the evidentiary requirements for determining whether an incompetent beneficiary has regained competency, see M21-1, Part X, Subpart ii, 6.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.

X.ii.6.D.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.

X.ii.6.D.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:  If VA receives a judicial determination that a beneficiary is incompetent, follow the instructions in M21-1, Part X, Subpart ii, 6.D.2.g.
References:  For more information on the

X.ii.6.D.2.g.  Processing a Judicial Determination of Incompetency
Judicial findings of a court with regard to the competency of a beneficiary are not binding on the rating activity.
Follow the steps in the table below after receiving a judicial determination of incompetency regarding a beneficiary.
Step
Who Is Responsible
Action
1
RO
If the beneficiary has been admitted to a hospital for treatment or observation, request medical records from the hospital that would be useful in evaluating the beneficiary’s competency.
2
RO
Complete a final rating decision regarding the beneficiary’s competency.
3
RO
Use the table below to determine how to process the rating decision referenced in Step 2.
If the rating activity determined the beneficiary is …
Then …
competent
  • complete any pending award actions
  • send a decision notice to the beneficiary, and
  • clear the pending EP 020 (or other associated rating EP).
incompetent
  • complete any pending award actions, withholding any retroactive benefits until the hub of jurisdiction assigns the beneficiary a fiduciary
  • send the beneficiary contemporaneous notice that satisfies the requirements of M21-1, Part X, Subpart ii, 6.D.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, which NWQ will route to the hub of jurisdiction, and
  • notify the hub of jurisdiction using
Note:  Hubs will provide oral notification of the Brady Act restrictions upon receipt of the EP.
4
RO
Pending certification of a fiduciary or other instructions from the hub, continue any existing
  • apportionments, and
  • payments VA is making to the beneficiary.
Reference:  For more information on handling a court’s appointment of more than one fiduciary, see M21-1, Part X, Subpart ii, 6.E.1.b.
5
hub authorization activity
Following receipt of certification
Reference:  For more information on the actions an RO’s authorization activity must take following receipt of a recommendation for payment from a hub, see M21-1, Part X, Subpart ii, 6.D.2.d.
References:  For more information on

X.ii.6.D.2.h.  Processing 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 their own financial affairs.
Note:  A child may be unable to support themself and still be considered competent to handle their financial affairs.
References:  For more information on

X.ii.6.D.2.i.  Authorizing an Award for a Beneficiary Found Competent by Court Decree
If a beneficiary previously held incompetent
  • by a court decree only, (not by rating decision) is subsequently found competent by a court decree
    • initiate direct payment to the beneficiary after a 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 to the hub that supervises the beneficiary’s fiduciary, or
  • by a court decree and by VA rating decision, is subsequently found competent by court decree
    • take the necessary development action
    • 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 hub.
Notes:
  • When a beneficiary was previously held incompetent by a court decree and by a VA rating decision, the rating activity must prepare a new rating.  If the rating activity confirms and continues incompetency, the rating decision must include a notation of the court’s declaration.
  • 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 X, Subpart ii, 6.F.1.

3.  Due Process Requirements for Incompetency Determinations

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

Change Date

 October 15, 2024

X.ii.6.D.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.
Notes:
  • Do not include Federal tax information in the notice.
  • 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.
Reference:  For more information on the Brady Act, see M21-1, Part X, Subpart ii, 6.D.4.

X.ii.6.D.3.b.  Notifying a Beneficiary Who Is Under the Age of Majority
If VA is making payments to the custodian of a beneficiary who is under the age of majority, and a decision regarding the child’s competency is needed when the child reaches the age of majority, send notice of a proposed rating of incompetency to
  • the current fiduciary that a hub has certified to receive payments for the child, or
  • a custodian that is recognized as a parent under 38 U.S.C. 5502(a).
 References:  For more information on

X.ii.6.D.3.c.  Handling Evidence VA Receives During the Due Process Period
The hub will review the evidence VA receives within 60 days of the date of the notice referenced in M21-1, Part X, Subpart ii, 6.D.3.a, and complete the final rating decision, unless one of the exceptions in FPM, Part I, 1.A.2.b applies.
Exception:  Follow the process outlined in M21-1, Part X, Subpart ii, 6.D.3.e, if VA receives evidence regarding a beneficiary’s competency in connection with a hearing the beneficiary requested.

X.ii.6.D.3.d.  Responding to a Beneficiary’s Request for a Hearing
If a beneficiary requests a personal hearing, advise the beneficiary that
  • witnesses may be brought to the hearing
  • witness testimony will be included in the record
  • they 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 the appropriate form from among those listed in M21-1, Part I, Subpart i, 2.A.2.c.
References:  For more information on

X.ii.6.D.3.e.  Processing a Beneficiary’s Request for a Hearing
The hub will process hearing requests VA receives between the date of the notice referenced in M21-1, Part X, Subpart ii, 6.D.3.a, and the date VA makes a final decision regarding the beneficiary’s competency, unless one of the exceptions in FPM, Part I, 1.A.2.b applies.
The table below describes the RO of jurisdiction’s (ROJ’s) process for handling a beneficiary’s request for a hearing when one of the exceptions in FPM, Part I, 1.A.2.b applies.
Stage
Description
1
The ROJ follows the instructions in M21-1, Part II, Subpart iii, 3.A.2.a, for establishing control of the hearing request.
2
The ROJ schedules and holds a hearing according to the instructions in M21-1, Part X, Subpart ii, 6.D.3.f.
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
  • completes and uploads VA Form 21-592 into the beneficiary’s eFolder, and
  • establishes an EP 290, FID-Fiduciary Adjustment, which NWQ will route to the hub of jurisdiction.

5
If the rating activity determined the beneficiary is incompetent, the hub of jurisdiction
  • appoints a fiduciary, and
  • releases any retroactive benefits due the beneficiary, if appropriate.
References:  For more information on

X.ii.6.D.3.f.  Conducting a Hearing Prior to a Final Determination
Designated hearing officials conduct hearings in accordance with the instructions in M21-1, Part X, Subpart v, 1.D.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.

X.ii.6.D.3.g.  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
  • close the tracked item used for the due process period under the corresponding EP
  • notify the 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.
Notes:
  • VA may accept a beneficiary’s waiver of due process by telephone or written notice from the beneficiary or their authorized representative.
  • The hub will maintain jurisdiction of the pending EP 590.
Reference:  For more information on the jurisdiction of individual hubs, see M21-1, Part X, Subpart ii, 6.C.1.d.

X.ii.6.D.3.h.  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 hub of jurisdiction makes a final decision regarding the beneficiary’s competency based on the evidence of record.

X.ii.6.D.3.i.  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:  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
October 15, 2024

X.ii.6.D.4.a.  Effect of the Brady Act on Incompetent Beneficiaries
The Brady Act of 1993, Public Law 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 beneficiaries to the Federal Bureau of Investigation (FBI) when
  • VA has determined that a fiduciary appointment is required because the beneficiary is unable to manage their VA benefits, and
  • an order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction finds that the beneficiary is a danger to self or others.
The FBI 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 a firearm.
Reference:  For more information on Brady Act reporting, see FPM, Part I, 1.B.2.n.

X.ii.6.D.4.b.  Notifying Affected Beneficiaries
Beneficiaries determined to be incompetent by VA 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:
  • Proposed Incompetency Letter
  • Proposed Incompetency – VBMS Core Letter, and
  • Redesigned Automated Decision Letter Final Incompetency Letter.
Reference:  For more information on what must be included in a notice of a proposed rating of incompetency, see M21-1, Part X, Subpart ii, 6.D.3.a.

X.ii.6.D.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
    • 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 Bureau of Alcohol, Tobacco, Firearms and Explosives website to apply for relief from explosives disabilities.

X.ii.6.D.4.d.  Initial Steps to Take After Receipt of a Request for Relief
Follow the steps described in the table below after receipt of a beneficiary’s request for relief from the requirements of the Brady Act.
Step
Action
1
Establish an EP 290 using the NICS Relief Request claim label.
2
Has VA already determined the beneficiary’s competency status by rating decision?
  • If yes, go to the next step.
  • If no, take no action until the rating activity makes its determination.  Once the determination has been made, go to the next step.
3
Did the rating activity determine the beneficiary is competent?
  • If yes, go to the next step.
  • If no, go to Step 5.
4
If the rating activity determined the beneficiary is competent
  • close the pending EP 290
  • notify the beneficiary with the following statement:
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., and
  • disregard the remaining steps in this table.
5
Did VA receive the request for relief along with a decision review request regarding the beneficiary’s competency?
  • If yes, go to the next step.
  • If no, go to Step 9.
6
If the decision review request was a
Upon completion of the decision review request, go to the next step.
7
Did the rating activity determine the beneficiary is now competent?
  • If yes, go to the next step.
  • If no, go to Step 9.
8
If the rating activity determined the beneficiary is now competent
  • close the pending EP 290
  • Notify the beneficiary with the following statement:
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., and
  • disregard the remaining steps in this table.
Notes:
  • On a weekly basis, 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 their 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.
9
Take the following development actions on the beneficiary’s request for relief:
10
Review the eFolder to determine if the beneficiary submitted the following documentation within 30 days of the notification letter:
  • a statement from their primary mental health physician that assesses their mental health status over the last five years
  • evidence of their reputation, and
  • a signed consent form.
Did the beneficiary provide the required information?
  • If yes, go to Step 12.
  • If no, go to the next step.
11
Deny the beneficiary’s request for relief, using the NICS Relief Denial letter in PCGL, and disregard the remaining steps in this table.
12
Follow the instructions in M21-1, Part X, Subpart ii, 6.D.4.g to decide whether to grant the beneficiary’s request for relief.

X.ii.6.D.4.e.  Required Paragraphs for the NICS Relief Development Letter
If development action is necessary under M21-1, Part X, Subpart ii, 6.D.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 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 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.

X.ii.6.D.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 X, Subpart ii, 6.D.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:  _________________________

X.ii.6.D.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 X, Subpart v, 1.C.2 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, family, and the community.
  • RO Directors must approve administrative decisions on requests for relief after concurrence by the Veterans Service Center Manager or 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).

X.ii.6.D.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 table below.  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 the assessment on which the statement is based is 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 a statement for VA to determine whether the beneficiary
    • has ever been a danger to self or others, and
    • would be a danger to self 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 self or others if allowed to purchase and possess a firearm.

X.ii.6.D.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 self 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 self 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 self 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, the 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 V, Subpart ii, 1.A.1.i.

X.ii.6.D.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 X, Subpart ii, 6.D.4.i) does not exist, claims processors must consider granting the request.
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.
Follow the steps in the table below to consider granting the request for relief.
Stage
Description
1
The claims processor 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 self or others if VA granted the request.
3
The rating activity
4
  • If the rating activity determined the beneficiary would be a danger to self or others if VA granted the request,
    • the claims processor prepares an administrative decision that denies the beneficiary’s request, and
    • no further action is needed.
  • If the rating activity determined there is nothing in the medical evidence of record indicating the beneficiary would be a danger to self 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 POC, whose e-mail address is VAVBAWAS/CO/NICS.
Notes:
  • The e-mail must include
    • an electronic copy of the signed consent form shown in M21-1, Part X, Subpart ii, 6.D.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 sent by e-mail to VAVBAWAS/CO/NICS.
6
The rating activity
  • summarizes the evidence it reviewed and documents the conclusion on a 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, and
    • cites all the evidence the claims processor and rating activity considered, and
  • follows the instructions in M21-1, Part X, Subpart ii, 6.D.4.k.
Important:  The RO Director must sign off on any decision to grant relief.

X.ii.6.D.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.
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 Grant letter in PCGL
  • e-mail a notice of the grant under the subject heading NICS Relief Grant to VAVBAWAS/CO/NICS, and
  • include the following information about the beneficiary in the body of the e-mail:
    • name
    • claim number
    • Social Security number (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 10, 2019

X.ii.6.D.5.a.  Authorization of SDP by a Hub
Under 38 CFR 13.110, a 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 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 hub indicates its authorization of SDP on VA Form 21P-555.

X.ii.6.D.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 them based on a 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 hub.
If necessary, request a current VA Form 21P-555 by
  • preparing VA Form 21-592 according to the instructions in M21-1, Part X, Subpart ii, 6.C.1.c
  • uploading an electronic copy of the form into the beneficiary’s eFolder, and
  • notifying the hub of jurisdiction via e-mail that action is pending on the form.

X.ii.6.D.5.c.  Hub Responsibilities Following the Authorization of SDP
After a hub authorizes SDP, it is responsible for
  • annotating the award document with the following notation:  VA Form 21P-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.

X.ii.6.D.5.d. Processing and Controlling an SDP Award
Follow the steps in the table below to process and control an SDP award.
Step
Action
1
Process an award that pays the beneficiary the full monthly rate of benefits 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 on processing withholdings, see the VBMS-Awards User Guide.
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 hub to furnish a certification for release of the withheld benefits to either
  • the beneficiary, or
  • a fiduciary.
4
Did the 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, go 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
    • go to the next step after the one-year time limit expires.
  • If no, go 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 hub to furnish a certification for release of the withheld benefits to either
    • the beneficiary, or
    • a fiduciary.
  • Return to Step 4 after the hub responds to the request.
Reference:  For more information on establishing diaries, see the

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

Change Date
December 30, 2020

X.ii.6.D.6.a.  Processing Rating Decisions That Conclude a Beneficiary VA Previously Rated Incompetent Is Now Competent
Follow the steps in the table below to process rating decisions that conclude a beneficiary VA previously rated incompetent is now competent.
Step
Action
1
Promulgate the rating decision.
2
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 the request moot.
Reference:  For more information on the reporting requirements of the Brady Act, see M21-1, Part X, Subpart ii, 6.D.4.
3
Establish EP 290, FID-Fiduciary Adjustment, and NWQ will route the case to the hub of jurisdiction.
Note:  The hub is responsible for making the necessary updates to Share using the CHANGE OF FIDUCIARY command to ensure all future payments are paid directly to the beneficiary.
Reference:  For more information on the jurisdiction of individual hubs, see M21-1, Part X, Subpart ii, 6.C.1.d.