Citation Nr: A21019571 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 210405-186502 DATE: December 8, 2021 REMANDED Entitlement to Department of Veterans Affairs (VA) per diem, to include for the domiciliary and nursing home levels of care, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1952 to June 1954. He was awarded the Combat Infantry Badge and the Purple Heart. The appellant is the Veteran's power of attorney. This appeal is before the Board of Veterans' Appeals (Board) from a November 2020 decision of the VA Veterans Health Administration, which constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1). In his April 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. As evidence was added to the claims file after the November 2020 decision, the Board it may not consider it. 38 C.F.R. § 20.300. However, as the Board is remanding the claim on appeal for further development, this additional evidence will be considered by the AOJ in any further adjudication of the claim. A veteran is an eligible veteran for the purposes of payment of per diem for domiciliary care in a State home if VA determines that the veteran is not barred from receiving care based on his or her service, is not barred from receiving VA pension, compensation or dependency and indemnity compensation based on the character of a discharge from military service, and the veteran is: (1) A veteran whose annual income does not exceed the maximum annual rate of pension payable to a veteran in need of regular aid and attendance; or (2) A veteran who VA determines has no adequate means of support. The phrase "no adequate means of support" refers to an applicant for domiciliary care whose annual income exceeds the rate of pension, but who is able to demonstrate to competent VA medical authority, on the basis of objective evidence, that deficits in health or functional status render the applicant incapable of pursuing substantially gainful employment, as determined by the Chief of Staff of the VA medical center of jurisdiction, and who is otherwise without the means to provide adequately for himself or herself, or be provided for in the community. 38 C.F.R. § 51.51(a); see also 38 U.S.C. § 1710(b); 38 C.F.R. § 17.46. For purposes of payment of per diem for domiciliary care in a State home, the eligible veteran must be able to perform the following: (1) Daily ablutions, such as brushing teeth, bathing, combing hair, and body eliminations, without assistance; (2) Dress himself or herself with a minimum of assistance; (3) Proceed to and return from the dining hall without aid; (4) Feed himself or herself; (5) Secure medical attention on an ambulatory basis or by use of a personally propelled wheelchair; (6) Have voluntary control over body eliminations or have control by use of an appropriate prosthesis; (7) Participate in some measure, however slight, in work assignments that support the maintenance and operation of the State home; (8) Make rational and competent decisions as to his or her desire to remain in or leave the State home. 38 C.F.R. § 51.51(b). The term domiciliary care means the furnishing of (i) A temporary home to a veteran, embracing the furnishing of shelter, food, clothing and other comforts of home, including necessary medical services; or (ii) A day hospital program consisting of intensive supervised rehabilitation and treatment provided in a therapeutic residential setting for residents with mental health or substance use disorders, and co-occurring medical or psychosocial needs such as homelessness and unemployment. It includes travel and incidental expenses pursuant to § 70.10. 38 C.F.R. § 17.30(b). Domiciliary care, as the term implies, is the provision of a temporary home, with such ambulant medical care as is needed. To be provided with domiciliary care, the applicant must consistently have a disability, disease, or defect which is essentially chronic in type and is producing disablement of such degree and probable persistency as will incapacitate from earning a living for a prospective period. 38 C.F.R. § 17.47(c). Entitlement to VA per diem, to include for the domiciliary and nursing home levels of care, is remanded. April 2020 notes from the Veteran's VA physician reflect that the Veteran had multiple chronic health conditions including dementia with frequent confusion and a high risk of falls, injury, and becoming lost. They reflect that the Veteran was unable to stay home alone and required 24-hour supervision and care, as well as assistance with activities of daily living. A VA FORM 10-10SH (STATE HOME PROGRAM APPLICATION FOR VETERAN CARE MEDICAL CERTIFICATION), signed by an admitting physician and the Veteran's VA physician, reflects that the Veteran was admitted to a State Veterans home on October 23, 2020, for long term care, after previously having lived with his son-in-law and daughter. The form reflects that, before this, the Veteran had been living alone and his family became concerned that he was falling at home and not taking his medications, eating well, or attending to his personal care needs. The Veteran had cognitive decline and an unsteady gait, and needed frequent reminders to use his walker, assistance with showers, and assistance when walking outside. It was noted that his family felt the Veteran would benefit from having 24-hour care that they were not able to give. A long-term care assessment for eligibility for state services (Maximus assessment) was completed on October 12, 2020, and the Veteran was assessed to require domiciliary care. On evaluation, regarding toileting, it was noted that the Veteran required assistance transferring to and from the bathroom and, regarding bathing, the Veteran required assistance with a sponge bath. In the November 2020 decision on appeal, the AOJ made the favorable findings that the Veteran met the service requirements for VA per diem for the domiciliary level of care and was not otherwise barred from receiving VA pension, compensation or dependency and indemnity compensation. However, it denied per diem for the domiciliary level of care at basic rate, effective October 23, 2020, based on the findings that the Veteran needed assistance with bathing and walking outdoors, and that he was also over the income threshold. As reflected in his April 2021 appeal and an attached statement, the appellant essentially contends that the Veteran has no adequate means of support, and that his income does not cover the costs of his monthly care. The appellant, however, concedes that the Veteran needs assistance with bathing and walking outdoors, and indeed asserts that the Veteran "needs more than assistance with bathing and walking outdoors." However, the AOJ's April 2021 denial of VA per diem for the domiciliary level of care was not based on the fact that the level of care required for the Veteran was limited to assistance with bathing and walking outdoors; it was based on the fact that he was not able to perform those functions without assistance. For purposes of payment of per diem for domiciliary care in a State home, an eligible veteran must be able to perform a number activities, including daily ablutions, such as brushing teeth, bathing, combing hair, and body eliminations, without assistance. 38 C.F.R. § 51.51(b). VA payment of per diem for domiciliary care is limited to Veterans requiring a specifically contemplated type and level of care; it is limited to those Veterans whose income and means of support are such that they require domiciliary care, but who are not so functionally impaired that, as contemplated in VA regulations, they require a higher level of care than domiciliary care (i.e. those who can perform the activities specified in 38 C.F.R. § 51.51(b) and 17.46(b)). See 83 Fed. Reg. 48380, 48381 (Sep. 25, 2018). However, neither the VA FORM 10-10SH nor any other document submitted by the appellant or otherwise of record limits the appellant's per diem request to the domiciliary rate. While the VA FORM 10-10SH indicated that the Veteran was assessed to require domiciliary care, it also stated that he needed assistance with bathing. In this regard, 38 C.F.R. §§ 51.40 to 51.59 set for the requirements applicable to eligibility for per diem at the nursing home, domiciliary, and adult day health care levels. Certain personsincluding those like the Veteran, with service-connected disabilities and those who were awarded the Purple Heartare eligible for payment of per diem for nursing home care if VA determines that the person needs nursing home care. 38 C.F.R. § 51.50(a), (b). Nursing home care means the accommodation of convalescents or other persons who are not acutely ill and not in need of hospital care, but who require nursing care and related medical services, if such nursing care and medical services are prescribed by, or are performed under the general direction of, persons duly licensed to provide such care. The term includes services furnished in skilled nursing care facilities, in intermediate care facilities, and in combined facilities. It does not include domiciliary care. 38 C.F.R. § 51.2. There is no indication that appellant limited the request for per diem to that of the domiciliary level, and not to all levels, including that of nursing care. Rather, the appellant's statements suggest that he was requesting per diem at whatever level was available to the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a claim may include a benefit that may reasonably be encompassed by the claimant's description of the claim and the other information of record). There is also no indication that the AOJ ever considered the matter of whether the Veteran was eligible for VA payment of per diem for nursing home care. The Board may remand for correction of any error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802. Here, there is no indication that the AOJ considered the appellant's per diem claim to include per diem at the nursing home care level, even though there was evidence suggesting that the Veteran met the eligibility requirements for such. See 38 U.S.C. §§ 511(a), 5104(b). As correction of this error by the AOJ in satisfying its regulatory and statutory duties would have at least a reasonable possibility of aiding in substantiating claim on appeal, the appeal must be remanded for the AOJ to properly adjudicate the appellant's claim for entitlement to VA per diem, to include for the domiciliary and nursing home care levels of care. The matters are REMANDED for the following action: Adjudicate the appellant's claim for entitlement to VA per diem, to include for the domiciliary and nursing home levels of care. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mack, Andrew The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.