Citation Nr: A25041285 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 220202-290301 DATE: May 6, 2025 REMANDED Entitlement to eligibility to enroll in the Program of Comprehensive Assistance for Family Caregivers (PCAFC) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2001 to August 2001, July 2003 to August 2003, and December 2005 to November 2006. In February 2022, the Board of Veterans' Appeals (Board) received a VA Form 10182, Decision Review Request: Board Appeal electing the Direct Review docket to review a July 2021 decision by a VA Agency of Original Jurisdiction (AOJ). 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. 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. Entitlement to eligibility for PCAFC is remanded. 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 activities 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.?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. 38?C.F.R. §?71.20(a)(3)(i). Such criteria may be met if the veteran requires personal care services each time 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.). 38?C.F.R. §?71.15 (emphasis added). 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. 38?U.S.C. §?1720G(a)(2)(C)(ii)-(iii). The Board notes that, per the VA regulations applied at the time of the AOJ's July 2021 assessment, 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. 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). Initially, 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). The record does not reflect any written determination on the March 2021 PCAFC application that meets the statutory criteria outlined in 38?U.S.C. §?5104(b) and as directed in 38?U.S.C. §?1720G(a)(12). Specifically, there is no written determination of record that provides 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. See 38?U.S.C. §?5104(b). Furthermore, after review of the July 2021 CEAT review consultation denying eligibility for participation in PCAFC, a new opinion is necessary which fully considers the Veteran's functional limitations due to his psychiatric disability. Specifically, the VHA decision that the Veteran was not entitled to eligibility for participation in VA's PCAFC relied on a June 2021 Veteran Functional Assessment Instrument (VFAI). Regarding the Veteran's ADLs, the VFAI found the Veteran was independent in all ADLs, noting only that he must take his time with some ADLs due to chronic pain. Relevant here however, for supervision, protection, and instruction, the assessment noted the Veteran used medications for skin and neuropathies, but was independent in doing so and did not require assistance. The VFAI reported the Veteran is mentally and physically able to have the judgement and physical ability to cope, make appropriate decisions, and act in a changing environment or potentially harmful situation. He was not at risk of self-neglect, and not at risk of neglect, abuse, or exploitation by another person. He was found to be able to be left alone without anyone checking in on him, and he could go places alone as long as they were familiar. Regarding safety, the VFAI marked no for all aspects of safety including delusions and hallucinations, agitation, impulsivity. He was also found to be able to identify his needs and arrange for his own safety. Narratively, he was observed as alert and oriented, but vague in responses throughout assessment with some contradiction. He appeared guarded, but his insight and judgement were deemed fair to good. The evaluator noted the Veteran was able to manage his own safety in a changing environment without difficulty, but he reported ongoing hypervigilance. The evaluator also noted the Veteran denied any safety concerns with self-preservation and is able to self-sustain at the home, but he expressed anxiety and avoidance of people, stating he does not make a regular habit of going out without caregiver; however, stated he is able to go to local and familiar areas should he need. He preferred the caregiver drive the majority of the time to mitigate road rage. It was also noted that the Veteran denied delusional or hallucinatory thoughts, anger, agitation, frustration, or impulsive behavior at this time that is problematic. As above, he was found able to identify his needs and arrange for his health and safety, noting he struggled with PTSD symptoms of hypervigilance and avoidance. The records reflect the Veteran's medical chart was reviewed for 12-month period prior to the review; however, the Caregiver Support Program staff was unable to collaborate with the Veteran's primary care team. In the instant case, there appears to be relevant symptomatology in records just prior to that 12-month period. Specifically, the Veteran underwent a VA examination in May 2017 for his psychiatric disability. Therein, he was noted to have symptoms of a depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, impairment of short and long term memory, a flattened affect, impaired judgment, impaired abstract thinking, disturbances in motivation and mood, difficulty in understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, obsessional rituals which interfere with routine activities, and impaired impulse control, such as unprovoked irritability with periods of violence. These symptoms and the resulting impairment were either not relayed to the evaluator during the VFAI or not adequately considered. Likewise, his VA treatment records note a past history of suicide attempts and suicidal ideation, with weapons at home but locked and controlled by his wife. See August 2018 VA Psychiatry Outpatient Note. Treatment records also note he attended treatment at a day hospital and has been seen in psychiatric emergency departments in the past. See January 2017 Psychosocial Treatment Note. Accordingly, as this evidence was seemingly unconsidered in the CEAT determination, a new medical opinion is needed to determine whether the Veteran requires supervision, protection, and instruction, based on consideration of his full disability picture and this additional symptomatology. The matter is 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: i. An inability to perform an activity of daily living; ii. A need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; or 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. In answering all questions, the medical facts and reasons underpinning every conclusion must be articulated. The CEAT must: (a) identify what facts and information support the conclusion, and (b) explain how that evidence justifies each conclusion. 2. Then, 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), and issue the Veteran, Family Caregiver applicant, and the Veteran's representative notice of the decision on entitlement to eligibility for designation and approval for a Family Caregiver under the PCAFC that complies with 38?U.S.C. §?5104. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Estes, Jonathan M.