Citation Nr: A22024843 Decision Date: 12/08/22 Archive Date: 12/08/22 DOCKET NO. 220521-245596 DATE: December 8, 2022 REMANDED Entitlement to benefits under the Program of Comprehensive Assistance for Family Caregivers (PCAFC) is remanded. REASONS FOR REMAND The Veteran had active service from November 1963 to April 1964, September 1966 to April 1969, and April 1971 to May 1978. L.J.J., the Veteran's spouse, is the individual who submitted the underlying joint application with the Veteran and is interested in serving as Primary Family Caregiver. 38 U.S.C. § 1720G(a)(12); 38 C.F.R. § 71.25. In the May 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran 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. Entitlement to benefits under the PCAFC is remanded. PCAFC is a VA program that provides certain benefits to eligible veterans who have incurred or aggravated serious injuries during military service, and to their caregivers. 38 C.F.R. § 71.10(a). Eligibility under the PCFAC program requires a finding that an eligible Veteran is in need of personal care services for a minimum of six continuous months from an eligible caregiver because of: An inability to perform an activity of daily living, a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury, or a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired. 38 U.S.C. § 1720G(a)(2); 38 C.F.R. § 71.20(a); see Veterans Warriors, Inc. vs. McDonough, 29 F.4th 1320 (Fed. Cir. 2022). The claim was denied in June 2021 because the Veteran did not require care from a Family Caregiver for a minimum of six months due to an inability to perform an activity of daily living, or have a need for supervision, protection, or instruction. In September 2021 an appeal was denied by the AOJ because the eligibility criteria were not met. A November 2021 decision from the AOJ (the Veterans Health Administration) states that the initial determination that the Veteran was not eligible for the PCAFC was being upheld. Generally, notice under 38 U.S.C. § 5104 must include the following: 1. Identification of the issues adjudicated. 2. A summary of the evidence considered by the Secretary. 3. A summary of the applicable laws and regulations. 4. Identification of findings favorable to the claimant. 5. In the case of a denial, identification of elements not satisfied leading to the denial. 6. An explanation of how to obtain or access evidence used in making the decision. 7. If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation. 38 U.S.C. § 5104(b). Without adequate notice of the basis for the denial, claimants cannot make an informed decision as to whether or not to accept or appeal the decision nor can they know what evidence to submit in order to substantiate the appeal. See Ingram v. Nicholson, 21 Vet. App. 232, 252 (2007) (discussing the legislative history of 38 U.S.C. § 5104 and the importance of clear and informative notice of decisions). Moreover, the Board cannot meaningfully review the AOJ's determination. On remand, the AOJ must provide complete notice of the decision as required by 38 U.S.C. § 5104 and 38 U.S.C. § 1720G(a)(12). The denial of the claim by the AOJ was based in part on the Veteran not having functional impairment that directly impacted his ability to maintain his personal safety on a daily basis. The Board notes that in March 2022, after this determination was rendered, the Federal Circuit invalidated 38 C.F.R. § 71.15, to the extent that the definition for a need for supervision, protection, or instruction included a single frequency requirement ("on a daily basis") and a personal safety requirement, because this was inconsistent with 38 U.S.C. § 1720G(a)(2)(C)(ii)-(iii). See Veteran Warriors, Inc. v. Sec'y of Veterans Affairs, 29 F.4th 1320, 1342-43 (Fed. Cir. 2022). As such, the Board remands the claim for a pre-decisional duty to assist error based on the precedential rule announced in Veteran Warriors. VAOGCPREC 7-03 (rules announced in judicial decisions apply retroactively to all cases still open on review when the new rule is announced); see also Brewer v. West, 11 Vet. App. 228, 234 (1998). Upon remand, the Veteran's eligibility should be evaluated under the correct statutory criteria for "need for supervision, protection, or instruction." 38 U.S.C. § 1720G(a)(2)(C). The matters are REMANDED for the following action: Issue the Veteran and his representative notice of the decision on the issue of entitlement to eligibility for PCAFC benefits as described in 38 U.S.C. § 5104 that evaluates the Veteran's eligibility under the correct statutory criteria for "need for supervision, protection, or instruction" that is consistent with the holding in Veteran Warriors and 38 U.S.C. § 1720G(a)(2)(C). The notice shall include but is not limited to: a summary of the evidence; a summary of the applicable laws and regulations; identification of findings favorable to the claimant; and, identification of the elements not satisfied but necessary for establishing eligibility for PCAFC benefits under 38 C.F.R. §§ 71.15-71.25. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, Counsel 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.