Citation Nr: A25035142 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 220119-506964 DATE: April 16, 2025 ORDER The appeal for eligibility for benefits under VA's Program of Comprehensive Assistance for Family Caregivers (PCAFC) is dismissed. ? FINDING OF FACT 1. The Veteran is a Legacy participant in PCAFC. 2. The November 2021 reassessment decision, which found that the Veteran did not meet the new eligibility requirement for PCAFC, will not take effect due to the extension of eligibility for Legacy PCAFC participants. CONCLUSION OF LAW The criteria for dismissal of the appeal for PCAFC benefits have been met. 38 U.S.C. § 7105 ; 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDING AND CONCLUSION The first party to the matter is the Veteran, who served on active duty from June 1991 to June 1993, February 1995 to January 2000, and June 2008 to December 2012. The second party to the matter is his spouse, who was approved and designated as his Primary Family Caregiver. The case is on appeal from a November 2021 decision of the Veterans Health Administration (VHA), which is the agency of original jurisdiction (AOJ). In a January 2022 notice of disagreement (NOD), which is considered timely, the appellants elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Eligibility for benefits under VA's PCAFC. The Veteran and his Primary Family Caregiver have been enrolled in PCAFC since before the expansion of the program on October 1, 2020. Therefore, they are classified as "Legacy participants." 38 C.F.R. § 71.15. The VA MISSION Act allowed legacy PCAFC participants to continue their participation in the program until October 1, 2020. At that time, the changes to the PCAFC criteria took effect, and participants' eligibility was to be reassessed within a one-year period following the effective date under the new post-expansion criteria. See 38 C.F.R. § 71.30(e)(1), 85 Fed. Reg. 46226, 46253 (July 31, 2020). In November 2021, the AOJ determined that a reassessment resulted in a determination that the Veteran and his Primary Family Caregiver did not meet the new eligibility requirements for the PCAFC program. (A copy of the corresponding notification letter is not in the file.) Effective September 21, 2022, an interim final rule extended PCAFC eligibility for certain legacy participants through September 30, 2025. See 87 Fed. Reg. 57602 (Sept. 21, 2022). The rule noted that prior to March 25, 2022, when a reassessment of a member of the Legacy cohort under § 71.30(e) resulted in a decision to decrease the stipend or discharge the individual, VA provided the preliminary findings to the individual with the intent of adopting those findings in its advanced notice of findings to be provided on October 1, 2022. However, because final notice of VA's decision regarding stipend decreases or discharges for the Legacy cohort cannot be issued before 60 days after October 1, 2022, those cases or claims are "still open on direct review" by VA. Id. at 57603. Moreover, because the preliminary findings were partially based on VA's definition for need for supervision, protection, or instruction that was invalidated by the decision in Veteran Warriors, Inc. v. Sec'y of Veterans Affairs, 29 F.4th 1320 (Fed. Cir. 2022), VA can no longer rely on those preliminary findings. The rule stated that VA would need to repeat reassessments, and therefore extended eligibility for Legacy participants for three additional years. See 87 Fed. Reg. at 57604. In this case, in light of the interim final rule, the Veteran's discharge from the PCAFC program will not take effect. The Veteran's eligibility for PCAFC has been extended and will be reassessed at a later time. No adverse determination remains with which the appellants disagree, so the appeal will therefore be dismissed. 38 U.S.C. § 7105 ; 38 C.F.R. § 20.104. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.