Citation Nr: A22025680 Decision Date: 12/16/22 Archive Date: 12/16/22 DOCKET NO. 220516-243131 DATE: December 16, 2022 REMANDED Entitlement to eligibility for benefits under the Program of Comprehensive Assistance for Family Caregivers (PCAFC) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to August 1967, to include service in the Republic of Vietnam. This appeal is before the Board of Veterans' Appeals (Board) from a January 2022 decision of the Department of Veterans Affairs (VA) Veterans Health Administration (VHA), which denied eligibility for PCAFC. In his May 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. 38 C.F.R. § 20.301. VHA's January 2022 decision notice explained that the Veteran did not meet the PCAFC eligibility criteria, as he did not require care from a Family Caregiver for at least six months due to an inability to perform an activity of daily living (ADL), or have a need for supervision, protection, or instruction. Initially, the PCAFC requires VA to notify individuals who apply for the program of decisions affecting the furnishing of assistance with notice as described in 38 U.S.C. § 5104. 38 U.S.C. § 1720G(a)(12). 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). The notification of the January 2022 decision does not meet the criteria outlined in 38 U.S.C. § 5104(b) and as directed in 38 U.S.C. § 1720G(a)(12). Specifically, it did not provide a summary of the evidence, the applicable laws and regulations, any favorable findings or other elements that were not satisfied leading to the denial, or an explanation of how to obtain or access the evidence used in making the decision. Furthermore, the AOJ determined that the Veteran did not meet the PCAFC eligibility criteria, in part, because he did "not require care from a Family Caregiver for a minimum of six months due to... a need for supervision, protection, or instruction." See 38 C.F.R. § 71.20(a)(3). Under VA regulations in effect at the time of the AOJ's decision, "[n]eed for supervision, protection, or instruction means an individual has a functional impairment that directly impacts the individual's ability to maintain his or her personal safety on a daily basis." See 38 C.F.R. § 71.15. However, in Veteran Warriors, Inc. v. Sec'y of Veterans Affairs, 29 F.4th 1320 (Fed. Cir. 2022), the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that VA's definition of "supervision, protection, or instruction" under 38 C.F.R. § 71.15 conflicts with the text of the statute it implements, 38 U.S.C. § 1720G(a)(2)(C)(ii)-(iii). That statute establishes that, if a Veteran meets the other eligibility criteria, he or she is eligible for PCAFC benefits if in need of personal care services because of either "a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury" (subsection (ii)) 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" (subsection (iii)). The Federal Circuit found that by requiring "supervision...on a daily basis," VA created a single frequency requirement for "supervision" that was inconsistent with the statutory language. Veteran Warriors, Inc., 29 F.4th at 1342. It also concluded that the requirement of "a functional impairment that directly impacts the individual's ability to maintain his or her personal safety" was inconsistent with the statutory text, as subsection (iii) was "unambiguously broad enough to encompass impairments that do not implicate personal safety," and therefore "some aspects of the statutory language provide benefits to veterans who need supervision or instruction but would not risk their personal safety in the absence of that care." Id. at 1342-43. The Federal Circuit therefore invalidated VA's definition of "supervision, protection, or instruction" contained in 38 C.F.R. § 71.15. Thus, by denying PFAFC eligibility because the Veteran did not have a "need for supervision, protection, or instruction" under 38 C.F.R. § 71.20(a)(3), as the phrase was defined under 38 C.F.R. § 71.15, the AOJ denied the Veteran's claim under invalid legal criteria, and the Veteran's claim has not yet been properly considered under the eligibility criteria set forth in 38 U.S.C. § 1720G(a)(2)(C)(ii)-(iii). See VAOGCPREC 7-03 (rules announced in judicial decisions apply retroactively to all cases still open when the new rule is announced). Moreover, the decision that the Veteran was not entitled to eligibility for participation in VA's PCAFC relied on a September 2021 review by the Centralized Eligibility and Appeals Team (CEAT), which found that the Veteran did not meet the eligibility requirements under the program because he did "not require hands-on assistance each time they complete at least one activity of daily living or have a daily need for supervision, protection, or instruction for a minimum of six continuous months." Generally, a decision by VA affecting the furnishing of assistance or support under the Caregiver Program shall be considered a medical determination. 38 U.S.C. § 1720G. The issue turns on the medical judgment of VHA and CEAT in determining whether the Veteran met the basic medical eligibility criteria under PCAFC. However, decisions as to eligibility under a Caregiver Program have been held to be subject to Board review. See Beaudette v. McDonough, 34 Vet. App. 95, 105 (2021). It is within the Board's jurisdictional authority to review the adequacy of all medical opinions upon which eligibility decisions are made. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wilson v. Derwinski, 2 Vet. App. 614 (1992). This includes CEAT's medical determination on which the instant eligibility decision was based. A VA opinion is adequate if it "sufficiently inform[s] the Board of the medical expert's judgment on a medical question and the essential rationale for that opinion." See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Here, CEAT's determination, as discussed above, was based on legally invalid criteria. As correction of these errors by the AOJ in satisfying its regulatory and statutory duties would have at least a reasonable possibility of aiding in substantiating the claim on appeal, the appeal must be remanded for the AOJ to (1) obtain a medical opinion from CEAT as to whether the Veteran is in need of personal care services based on the criteria listed in 38 U.S.C. § 1720G(a)(2)(C); (2) properly consider the Veteran's claim under the eligibility criteria set forth in 38 U.S.C. § 1720G(a)(2)(C)(ii)-(iii); and (3) provide the Veteran with complete notice of the decision as required by 38 U.S.C. § 5104. See 38 C.F.R. § 20.802 The matter is therefore REMANDED for the following action: 1. Obtain a medical opinion from CEAT as to whether the Veteran is in need personal care services 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. In answering all questions, the medical facts and reasons underpinning every conclusion must be articulated. CEAT must (1) identify what facts and information support the conclusion, and (2) explain how that evidence justifies each conclusion. 2. Readjudicate the claim for entitlement to eligibility for benefits under PCAFC pursuant to the appropriate eligibility criteria, including those set forth in 38 U.S.C. § 1720G(a)(2)(C)(ii)-(iii), in accordance with the Federal Circuit's opinion in Veteran Warriors, Inc. v. Sec'y of Veterans Affairs, 29 F.4th 1320 (Fed. Cir. 2022). 3. Issue the Veteran notice of the decision as described in 38 U.S.C. § 5104. 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 U.S.C. § 1720G and 38 C.F.R. §§ 71.15-71.25. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.