Citation Nr: A22012340 Decision Date: 06/30/22 Archive Date: 06/30/22 DOCKET NO. 211207-202959 DATE: June 30, 2022 ORDER The June 21, 2022, Board of Veterans' Appeals (Board) decision granting the claim of entitlement to benefits under the Program of Comprehensive Assistance for Family Caregivers (PCAFC) is vacated. REMANDED Entitlement to benefits under the PCAFC is remanded. FINDING OF FACT The Board's June 21, 2022, decision did not properly consider whether the Veteran and his spouse had undergone an in-home assessment and whether the Veteran's spouse had completed caregiver training. CONCLUSION OF LAW The criteria for vacatur of the June 21, 2022, Board decision granting entitlement to benefits under the PCAFC have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1965 to October 1967. In the December 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The June 21, 2022, Board decision granting the claim of entitlement to benefits under the Program of Comprehensive Assistance for Family Caregivers (PCAFC) is vacated. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. On June 21, 2022, the Board granted the claim for entitlement to benefits under the PCAFC. This decision was improper because the record does not show that the caregiver has completed the necessary training and that there has been an in-home assessment. See 38 C.F.R. § 71.25(c), (e). The Board's decision granting the claim was premature because all of the criteria for benefits under the PCAFC may not have yet been met. As such, the Board's June 21, 2022, decision is hereby vacated. REASONS FOR REMAND Entitlement to benefits under the PCAFC is remanded. In the April 2021 decision on appeal, the Veteran was found to be ineligible for the PCAFC because he had not been 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. Eligibility under the PCFAC program requires a finding that an eligible Veteran is in need of personal care services for a minimum of six continuous months from an eligible caregiver 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. 38 U.S.C. § 1720G(a)(2); 38 C.F.R. § 71.20(a); see Veterans Warriors, Inc. vs. McDonough, 29 F.4th 1320 (Fed. Cir. 2022). "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. "An inability to perform an activity of daily living" means the individual 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, 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 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.). Id. An "eligible veteran" is a member of the Armed forces undergoing a medical discharge, or an individual who had a serious injury incurred or aggravated in the line of duty during active service. See 38 C.F.R. § 71.20(a). "Serious injury" means any service-connected disability that is rated 70 percent or more by VA, or is combined with any other service-connected disability or disabilities, and a combined rating of 70 percent or more is assigned by VA. 38 C.F.R. § 71.15. Individuals who wish to be considered for designation by VA as a Primary or Secondary Family Caregiver must submit a joint application with the Veteran, and evaluations and caregiver training must take place within 90 days of the application unless VA issues an extension based on VA's inability to complete the assessments and training. 38 C.F.R. § 71.25(a)(2)(ii). Before VA approves an applicant to service as a Primary or Secondary Family Caregiver, the applicant must be initially assessed by VA as being able to complete caregiver education and training. 38 U.S.C. § 71.25(c). Furthermore, there must be an initial home-care assessment which requires VA to visit the eligible veteran's home to assess his well-being and the well-being of the caregiver, and the caregiver's competence to provide personal care services at the eligible veteran's home. 38 U.S.C. § 71.25(e). Service connection is in effect for posttraumatic stress disorder with a rating of 100 percent. Therefore, the Veteran is an eligible veteran for the PCAFC because there is a combined rating of at least 70 percent. See 38 C.F.R. §§ 71.15, 71.20(a). The Veteran and his spouse had a VA telemedicine caregiver functional assessment in March 2021. His spouse reported that she helped wash the Veteran's back, legs, and feet due to his neuropathy of the legs and feet. She had to rinse and dry off the Veteran, and helped him get out of the shower. The Veteran said that he sat on a shower chair to bathe and on a stool when he got out of the tub while his wife dried him off. The Veteran's spouse said that she assisted the Veteran with dressing and undressing the Veteran's upper and lower body. The Veteran could assist by raising his arms and "pulling his pants up," but she did the rest. In addition, she put on the Veteran's socks and shoes. The Veteran said that he had a scooter, rollator walker, cane, wheelchair, shower stair, and chairlift. The Veteran slept in a recliner lift chair and did not have problems getting in and out of it due to it being a lift chair. Once he awakens, he had problems walking, and he held onto furniture and used a cane when walking in his home. The Veteran said that he was unable to ambulate more than ten feet in his home, and he used his scooter outside the home. Mobility testing was not performed at the assessment due to medical conditions and safety concerns. Regarding self-presentation, the examiner felt that the Veteran had the judgment and physical ability to cope, make appropriate decisions, and take action in a changing environment or potentially harmful situation. However, it was also noted that the Veteran had an inability to manage medications or seek medical treatment that could threaten health or safety. The Veteran could sometimes be left home for an hour or two. Furthermore, the examiner felt that the Veteran could identify his own needs and could arrange for his health and safety. The Veteran said that he got frustrated by not being able to perform activities of daily living, and was grateful to his wife for her assistance. The Veteran wrote in May 2021 that he is on a trilogy machine because his respiration is so labored. He could take only a few steps before experiencing dyspnea, and his wife helped him bathe, dress, prepare meals, and with his medications. The record shows that the Veteran is unable to dress or undress himself, and cannot bathe himself. Both the March 2021 assessment and May 2021 statement from the Veteran show that he receives extensive assistance from his wife every time he performs these activities. Therefore, the Veteran has an inability to perform two of the enumerated activities of daily living. See 38 C.F.R. § 71.15. The record also shows that this has been continuous for at least six months. However, it has been greater than 90 days since the Veteran and his spouse completed the PCAFC application in January 2022. The record does not reflect that the Veteran's spouse has undergone caregiver training. Furthermore, the record does not show that there has been an in-home assessment of the Veteran and the caregiver (his spouse). The Board finds that this was due at least in part to the lack of further development after the March 2021 telemedicine assessment through no fault of the Veteran or his spouse, which constituted a violation of the pre-decisional duty to assist. Consequently, the Board is extending the 90-day period until the development ordered below can be completed. See 38 C.F.R. § 71.25(a)(2)(ii). Therefore, the claim must be remanded before it can be decided on the merits. The matters are REMANDED for the following action: 1. Arrange for an in-home assessment to assess the Veteran's well-being and the ability of the Veteran's spouse to communicate and understand the required personal care services and any specific instructions related to the care of the Veteran (accommodation for language or any hearing impairment will be made to the extent possible and as appropriate); and whether the Veteran's spouse is capable of performing the required personal care services without supervision, in adherence with the eligible veteran's treatment plan in support of the needs of the Veteran. 2. Arrange for the Veteran's spouse to complete caregiver training and demonstrate the ability to carry out the specific personal care services, core competencies, and any additional care requirements. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.