Their right to bear arms after service......I found this online and it was written by a Vet who HAS BEEN put through this process. Thought there may be some interest on this subject here for our Vets rather active or retired. And again...Thank you ALL for your service!!!!!!!
It is a bit of a long read but one I think you'll find useful.
Paul
The VA tried to do this to me. I am an Iraq veteran with a TBI and PTSD rating and some other minor disabilities. As I left the Army they had low balled my ratings, so badly low balled them that when I had my case reviewed the reviewer saw the doctors name and groaned and rolled her eyes saying "Oh it's from Dr Lowball!". My appeal took over a year to go through the system and finally when it was about to be approved I checked the VA's online information system and noticed my appeal had been withheld to review my "competency". For those vets who are going to go through this here are some tips.
Let me explain how this process works. It's an extrajudicial process. This incompetency matter is done simply by the bureaucrats at the Veterans administration. First they will mail you a form letter saying that they are in the process of declaring you incompetent and you have X (Usually about 30 days) amount of time to respond. IF YOU DO NOT respond within the allotted time they will rubber stamp the incompetency claim and you are from then forward Incompetent and must select a Fiduciary to continue receiving your benefits. Since it's extrajudicial you can only appeal it to them. However after multiple appeals you may take it to "grown up court" in the federal courts. The appeal will be a lengthy and expensive process and no lawyers will want to help you so you will be on your own. It's important you watch your correspondence from the VA to head off that letter and if you are in the process of an appeal CHECK THAT APPEAL online at ebenefits often to make sure it hasn't been put into a competency phase. Probably 90% of the Veterans they hit with his were caught up because they weren't reading the correspondence they receive from the VA. I know they send you several national forests worth of paper every year but you need to read EVERY one of those letters.
Here is a tip to head this off. The process for declaring you incompetent is an extrajudicial policy procedure that is being misapplied by this administration. Basically what the code says is that since the VA is the one giving you money if THEY believe you are incompetent they can declare you incompetent and demand a fiduciary handle your VA funds. However because of gun control laws from the 90's this extrajudicial process was allowed to be entered as a barr from gun ownership in NICS checks. However the federal code the allows them to declare you incompetent requires that the medical evidence points to you being clearly incompetent and if there is any doubt of your incompetency they have to rule in your favor. This is listed under 38 CFR 3.353 (c) and (d).
(c) Medical opinion. 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. Considerations of medical opinions will be in accordance with the principles in paragraph (a) of this section. Determinations relative to incompetency should be based upon all evidence of record and there should be a consistent relationship between the percentage of disability, facts relating to commitment or hospitalization and the holding of incompetency.
(d)
Presumption in favor of competency.
Where reasonable doubt arises
regarding a beneficiary's mental capacity to contract or to manage his
or her own affairs, including the disbursement of funds without
limitation, such doubt will be resolved in favor of competency (see ยง 3.102 on reasonable doubt).
A quick tip to head this off despite their misapplication of this code to push their gun banner agenda is to make sure EVERY time you see ANY provider at the VA you demand that they enter into your file (because they make an entry for every visit) that you are competent to handle your own affairs. If they refuse to do it fire them and get a new doctor, stand your ground. The reason is these same files later will be used as evidence for or against you in that competency determination. EVERY entry counts. This is how I headed off their attempt to declare me"incompetent".
IF you are in the process of appealing their "incompetency" ruling don't be afraid to point to the law. Print it out and take it with you. Demand that they rule in your favor as they are required to do so when there is reasonable doubt of your incompetency. Point out that your prepared self defense alone points to your competency but also have your credit record and past bank statements handy to point to your financial competency. If you have accounts in collections clear them up prior to your appeal hearing. If you are in recovery get statements from your sponsors and fill out a FOIA request for your records regarding your recovery and psychiatric appointments. The psychiatrist will flat out tell you that they can't make a statement in your favor BUT they can make entries to your record. HINT, have them put their glowing report of your recovery process in your record with a statement regarding how you are financially competent. As I said before, it's your own medical records they are using as evidence against you and you have some control over what gets put in those records when you see your healthcare providers.
When they attempted to do this to me no one could give me a clear answer as to why they would try to declare me "incompetent" some said it was because in any appeal where the award would have more than 20k in backpay it is "automatic" and others either had no answer or said it was because of my "psychiatric disability (PTSD) since competency was never a prior concern in my records. The only thing that saved me was my doctors were willing to go to bat for me and make those entries into my file. Make no mistake they ARE doing this to veterans in a widespread program, if you appeal your rating they will likely do it to you too. Head it off at the pass and make sure there are entries in your records proclaiming your financial competency
