Citation Nr: A24029731 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 220921-293681 DATE: June 6, 2024 REMANDED Entitlement to eligibility for benefits under the Program of Comprehensive Assistance for Family Caregiver (PCAFC) is remanded. REASONS FOR REMAND The Veteran had active military service from June 1969 to June 1989. His decorations include an Army Commendation Medal and a Meritorious Service Medal. The Board is appreciative of his 20 years of active military service. In the September 2022 VA Form 10182, Decision Review Request: Board Appeal, Notice of Disagreement, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the August 2021 agency of original jurisdiction (AOJ) decision on appeal, here the Veterans Health Administration (VHA) decision, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the decision on appeal and prior to receipt of the VA Form 10182, or (2) more than 90 days following receipt of the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. Lastly, the Board notes that the Veteran's appeal to the Board was received more than one year following the August 2021 AOJ/VHA decision. Generally, an appeal to the Board must be received within one year of the date of mailing of the decision made by the AOJ. 38 C.F.R. § 20.203(b). However, there is an exception to this time limit for PCAFC cases that were decided by the AOJ prior to September 28, 2021. In these cases, the one-year time limit does not apply because prior to September 28, 2021, the AOJ decisions were not issued with an accompanying notice to the claimant of a right to appeal to the Board. Consequently, because the August 2021 decision (potentially mailed September 16, 2021 as will be discussed in further detail below) was issued prior to September 28, 2021, the one-year time limit does not apply. Accordingly, the Veteran's appeal is considered timely. PCAFC eligibility is remanded. The Veteran has been in receipt of a 100 percent disability rating from March 14, 2016, 70 percent from May 1, 2017, 80 percent from May 28, 2019, and 90 percent from July 29, 2022. He and the Caregiver-Applicant filed an application for PCAFC benefits dated December 2020. The claim was originally denied by an August 2021 Centralized Eligibility and Appeals Team (CEAT) decision on the basis that the Veteran does not require personal care services for a minimum of six continuous months based on an inability to perform an activity of daily living (ADL) and/or a need for supervision, protection, or instruction. Remand is necessary for several reasons. First, a remand is necessary because notification of the August 2021 decision was legally inadequate. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. 38 C.F.R. § 3.103(b)(1). Notification will be in writing. See 38 C.F.R. § 3.103(f). The AOJ shall notify the applicable individuals regarding decisions affecting the furnishing of PCAFC assistance using standardized letters, as the Secretary determines such notifications and letters to be appropriate. 38 U.S.C. § 1720(G)(a)(12)(A). The notification provided shall include the elements required for notices of decisions under section 5104(b) of this title to the extent that those elements apply to such notification. 38 U.S.C. § 1720(G)(a)(12)(B). Generally, notice under 38 U.S.C. § 5104(b) must include the following: (1) identification of the issues adjudicated; (2) a summary of the evidence considered by VA; (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; and (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). In this case, there is no notification letter meeting the applicable requirements. According to a February 2024 memorandum, a copy of the original denial letter was unable to be located. Although the file contains a September 2021 CSP denial note that indicated a letter was placed on a mailing tracker to be mailed on September 16, 2021, a copy of the letter is not in the file. Although the September 2021 written notification, if sent, may have complied with the requirements, a copy is not in the file, so the Board has no way to know. Overall, the Board cannot find that a legally adequate notice of the decision, as required by 38 U.S.C. § 5104, was provided. Remand is needed to cure this due process deficiency. Second, remand is needed for an adequate medical decision. The August 2021 CEAT Review Consultation found that the Veteran did not meet the eligibility requirements under the program. The Board finds that the CEAT medical review is legally inadequate to support the decision made. As a general matter, 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 the 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). To this end, 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 the CEAT's medical determination upon 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." A non-exhaustive list of factors that, depending on the case, may be relevant considerations in determining the adequacy and probative value of a medical opinion include: (1) whether there was personal examination of the patient; (2) the expert's knowledge and skill in analyzing the data; (3) whether the opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two; (4) whether the opinion is clear and susceptible of only one meaning; (5) the expert's familiarity with pertinent medical history; (6) whether there is any inconsistency in the expert's statements; (7) whether the expert has provided a thorough and detailed opinion about an area within his or her expertise; (8) whether the expert has provided factually accurate, fully articulated, and sound reasoning for his or her conclusion; (9) whether the expert relied on sufficient facts or data; (10) whether the opinion is the product of reliable principles and methods; (11) whether the opinion is the result of principles and methods reliably applied to facts; and (12) whether medical text evidence that a medical opinion relies on contains qualifying or contradictory aspects where the text is entered into the record, at least in part. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019). In short, a medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the CEAT's review does not meet these requirements. It found "[t]he Veteran and caregiver do not meet eligibility criteria for PCAFC at the time of this application review." It explained the "CEAT found that the Veterans level of personal care needs does not meet eligibility requirements for PCAFC because the Veteran does not require hands-on assistance each time he completes at least one activity of daily living or has a daily need for supervision, protection, or instruction for a minimum of six continuous months. Although the Veteran does require some degree of caregiving assistance with dressing, he does not require hands-on caregiving assistance for an ADL." This decision does not cite which, if any, medical records or findings supported the decision. It did not provide any explanatory rationale other than these conclusory, generalized statements summarizing its view of his functioning. Simply put, the CEAT is responsible for making the initial medical decision regarding eligibility for PCAFC benefits, but without an adequate supporting explanation, the Board has no way to know how or why the decision here was reached, to include what specific medical facts in this Veteran's case justified the denial. Remand is needed for a legally adequate medical decision. Finally, the August 2021 CEAT review consultation found that the Veteran did not meet the eligibility requirements under the program. In making this determination, the decision found that the level of the Veteran's personal care does not require a "daily need for supervision, protection, or instruction." (Emphasis added). Under VA regulations in effect at the time of the 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, 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). Veteran Warriors, Inc., 29 F.4th 1320 (Fed. Cir. 2022). 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. 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. The Federal Circuit therefore invalidated VA's definition of "supervision, protection, or instruction" contained in 38 C.F.R. § 71.15. As PCAFC eligibility was denied in part because the Veteran was not in need of personal care services based on 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 VAOPGCPREC 7-03 (rules announced in judicial decisions apply retroactively to all cases still open when the new rule is announced). Therefore, the claim must be remanded to readjudicate the claim for entitlement to eligibility for benefits under PCAFC pursuant to the appropriate eligibility criteria. Correction of these errors by the AOJ is necessary to satisfy a statutory duty under 38 U.S.C. § 5104 and a duty-to-assist error that occurred prior to the decision on appeal. See 38 C.F.R. § 20.80(a); see also 38 U.S.C. § 1720G(a)(12). The matter is REMANDED for the following action: 1. Obtain a medical opinion from the CEAT as to whether the Veteran: Requires personal care services each time he completes one or more of the following: i. Dressing or undressing oneself; ii. Bathing; iii. Grooming oneself in order to keep oneself clean and presentable; iv. Adjusting any special prosthetic or orthopedic appliance, that by reason of the particular disability, cannot be done without assistance (this does not include the adjustment of appliances that nondisabled persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); v. Toileting or attending to toileting; vi. Feeding oneself due to loss of coordination of upper extremities, extreme weakness, inability to swallow, or the need for a non-oral means of nutrition; or vii. Mobility (walking, going up stairs, transferring from bed to chair, etc.). b. Has a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; or c. Has 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. d. In answering all questions, the medical facts and reasons underpinning every conclusion must be articulated. 2. Issue a notice of the decision on the issue of entitlement to eligibility for PCAFC benefits 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 C.F.R. § 71.15-71.25. Notice must be sent to the Veteran, his representative, and the Caregiver-Applicant. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, Associate 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.