Citation Nr: A25106945 Decision Date: 12/11/25 Archive Date: 12/11/25 DOCKET NO. 220204-218687 DATE: December 11, 2025 REMANDED Eligibility to enroll in the Program of Comprehensive Assistance for Family Caregivers (PCAFC) related to a September 2021 application is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1989 to March 2009. E.B., the Veteran's significant other, submitted a joint application for PCAFC with the Veteran to serve as Primary Family Caregiver. See generally 38 C.F.R. § 71.25(a)(1). This appeal comes to the Board of Veterans' Appeals (Board) from a December 2021 decision. In February 2022, the Board of Veterans' Appeals (Board) received a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) electing the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal and evidence received with the Notice of Disagreement or within 90 days of receipt of the Notice of Disagreement. 38?C.F.R. § 20.303. As the Board is remanding the claim on appeal to the AOJ, any such additional evidence may be considered by the AOJ in further adjudication. In December 2023, the Veteran appointed an attorney to represent him using the appropriate form signed by both the Veteran and the attorney. In correspondence received in February 2024, the attorney attempted to withdraw representation and while he stated that he determined no harm would come to the Veteran due to the withdrawal, he did not follow the proper procedure, as set forth in 38 C.F.R. § 20.6. See February 2024 Third Party Correspondence. His assertion that no harm was done does not absolve him of following the appropriate procedure. Consequently, his attempt to withdraw representation is no accepted and he remains the attorney of record. Eligibility to enroll in PCAFC related to a September 2021 application is remanded. Under the Appeals Modernization Act (AMA) the Board may only remand an appeal in one of the two circumstances: (1) to correct a duty to assist error that occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors); and (2) to correct AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the claimant's claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 20.802(a). As to what is required to enroll in the PCAFC program, as outlined in 38 U.S.C. § 1720G, a veteran is eligible for PCAFC if, among other criteria, he or she is in need of personal care services because of (i) An inability to perform one or more activity of daily living (ADL); (ii) a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; (iii) 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; or (iv) such other matters as the Secretary considers appropriate. As further detailed in the regulations, it must also be "in the best interest of the individual to participate in the program." See 38 C.F.R. § 71.20(a)(4). In need of personal care services means that the eligible veteran requires in-person personal care services from another person, and without such personal care services, alternative in-person caregiving arrangements (including respite care or assistance of an alternative caregiver) would be required to support the eligible veteran's safety. See 38 C.F.R. § 71.15. In cases like the current appeal that are filed on or after October 1, 2020, the impairment causing the need for in-person personal care does not have to be from a service-connected disability. See 38 U.S.C. § 1720G(a); 38 C.F.R. § 71.15. The need for personal care services can be demonstrated by an inability to perform an activity of daily living. See 38 C.F.R. § 71.20(a)(3)(i). Such criteria may be met if the veteran requires personal care services each time, even if minimal, he or she completes one or more of the following: (1) dressing or undressing oneself; (2) bathing; (3) grooming oneself in order to keep oneself clean and presentable; (4) adjusting any special prosthetic or orthopedic appliance; (5) toileting or attending to toileting; (6) 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 (7) mobility (walking, going up stairs, transferring from bed to chair, etc.). See 38 C.F.R. § 71.15; also see 85 FR 46233; 85 FR 46233. The need for personal care services can also be demonstrated if a veteran demonstrates a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury and/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. See 38 U.S.C. § 1720G(a)(2)(C)(ii)-(iii). Per VA regulations applied at the time of the AOJ's December 2021 Centralized Eligibility and Appeals Team (CEAT) report, this criterion was defined as a "[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 38 U.S.C. § 1720G(a)(2)(C)(ii)-(iii). The Federal Circuit therefore invalidated VA's regulatory definition of "supervision, protection, or instruction" contained in 38 C.F.R. § 71.15. See Veteran Warriors, Inc., 29 F.4th at 1342-43. Therefore, VA must apply subparts (ii) and (iii) of 38 U.S.C. § 1720G(a)(2)(C) in place of the regulatory definition at 38 C.F.R. § 71.15 when making determinations under the PCAFC regulations that became effective on October 1, 2020. See 87 Fed. Reg. 57602, 57603 (Sept. 21, 2022). First, the December 2021 CEAT does not include a discussion of the medical evidence it relied upon in reaching the conclusion that the Veteran was not in need of personal care services for a minimum of six continuous months based on an inability to perform an activity of daily living or a need for supervision, protection or instruction; instead, it just contains a conclusory statement unsupported by medical reasoning. See, e.g., Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Black v. Brown, 5 Vet. App. 177, 180 (1995); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993). Specifically, the CEAT's determination did not provide any reasoning, rationale, or justification nor provide detail on what medical information was used in the assessment of the Veteran's personal care service needs. Second, the October 2021 Veteran Functional Assessment shows the Veteran is independent for certain aspects of ADL; however, some areas are not reported as independent. In this regard, for bathing it notes the Veteran reported that he needed assistance bathing his lower legs due to not being able to bend over. Similarly, for dressing and undressing, it states he is independent with the upper body, but the lower body, to include putting on and taking off footwear, was not attempted due to a short-term medical condition or safety concerns. For toileting hygiene, it again states it was not attempted due to a short-term medical condition or safety concerns. The CEAT neglected to address the significance of the activities where he was reported to have problems and why they were not attempted. It also did not discuss the above problems when it concluded that the Veteran was not in need of personal care services for a minimum of six continuous months based on an inability to perform an activity of daily living or a need for supervision. See Davidson, supra. For these reasons, the December 2021 AOJ decision's reliance on the CEAT is misplaced because the evidence it relied upon, such as the Functional Assessment were lacking and/or incomplete. Furthermore, the CEAT stated all medical records were considered, but the absence of reference to any medical records to support its determination prevents the Board from determining what evidence was relied on by CEAT. In short, the December 2021 decision 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. See 38 U.S.C. § 5104(b). Finally, the December 2021 CEAT's finding that the AOJ relied upon when it found that the Veteran did not require personal care services for a minimum of six continuous months has an inadequate rationale. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993). As the December 2021 CEAT did not sufficiently support their opinion in accordance with VA controlling laws and regulations, the Board finds that a remand is warranted to obtain a medical opinion to satisfy these regulatory and statutory duties because it has a reasonable possibility of aiding in substantiating the claim. See 38 C.F.R. § 20.802(a). The matter is REMANDED for the following action: Obtain a medical opinion from CEAT that addresses the following: a) Whether it is in the Veteran's best interest to participate in the PCAFC program; b) Whether he requires personal care services each time he completes one or more of the following: (1) dressing or undressing oneself; (2) bathing; (3) grooming oneself in order to keep oneself clean and presentable; (4) 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.); (5) toileting or attending toileting; (6) 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 (7) mobility (walking, going up stairs, transferring from bed to chair, etc.). c) Has a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; or d) Has a need for regular extensive instruction or supervision without which the ability of the Veteran to function in daily life would be seriously impaired. e) In answering all questions, the medical facts and reasons underpinning every conclusion must be articulated. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bredehorst, D. 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.