Citation Nr: A23009707 Decision Date: 05/10/23 Archive Date: 05/10/23 DOCKET NO. 220329-234571 DATE: May 10, 2023 ORDER The March 7, 2023, 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 eligibility under the PCAFC is remanded. FINDING OF FACT The Board's March 7, 2023, 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 March 7, 2023, remand addressing eligibility for benefits under the Program of Comprehensive Assistance for Family Caregivers (PCAFC) have been met. 38 U.S.C. §§ 7103(c), 7104(a); 38 C.F.R. § 20.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1967 to October 1969. He was awarded the Vietnam Service Medal with four Bronze Service Stars and Combat Infantryman Badge, among other decorations, for this service. In the March 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. On October 27, 2022, the Veteran provided testimony before the undersigned Veterans Law Judge and a transcript of the hearing has been associated with the record. There was a 90 day evidence submission period following the hearing. 38 C.F.R. § 20.303. Next, 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 March 7, 2023, 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 March 7, 2023, decision is hereby vacated. REASONS FOR REMAND Entitlement to benefits under the PCAFC is remanded. The Veteran maintains that he is eligible for the Program of Comprehensive Assistance for Family Caregivers (PCAFC) under 38?U.S.C. §?1720G(a); 38?C.F.R. § 71.20. However, for the reasons discussed below, the Board finds remand is warranted to satisfy a pre-decisional duty-to-assist error. 38?C.F.R. §?20.802. 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. Service connection is in effect for multiple disabilities with a combined rating of 100 percent. Therefore, the Veteran is an eligible veteran for the PCAFC. See 38 C.F.R. §§ 71.15, 71.20(a). The Veteran and his spouse had a VA caregiver functional assessment in December 2020. The evaluator noted that the Veteran needed assistance getting in and out of the bed and chairs, in and out of the shower, and could not go up stairs. Regarding self-presentation, the examiner found that the Veteran could not provide or arrange for his health or safety. Further, during the assessment, the Veteran was unable to name or describe the usage or dosage of his current medications. In October 2022, the Veteran and his Caregiver (spouse) provided credible testimony in support of the claim and indicated both that the Veteran had required assistance for more than six months and that his condition was worsening. His spouse reported that the Veteran required daily assistance with medication management, getting out bed, basic hygiene, meal preparation, transportation, dressing and undressing, and showering. The Veteran's spouse also reported that without assistance, the Veteran would be unable to keep track of medications including taking the correct amounts at the correct times of day. She further stated that at times the Veteran would completely fall and require her assistance to get back up. Finally, she reported doing all of the shopping for, and preparation of, meals for the Veteran. After review of the lay and medical evidence, the Board finds that the Veteran is in need of regular or extensive instruction or supervision without which his ability to function in daily life would be seriously impaired. See 38 U.S.C. § 1720G (a)(2)(C)(iii). Specifically, the December 2020 examiner found the Veteran could not provide or arrange for his health or safety. To support this finding, the examiner added that the Veteran was unable to name or describe the usage or dosage of his current medications. This finding is further supported by the lay evidence of record where the Veteran's spouse testified that without her assistance the Veteran would be unable to keep track of medications including taking the correct amounts at the correct times of day. To be sure, when directly asked the Veteran's spouse indicated that without her assistance the Veteran would not be able to the to take the correct dosage of his medications at the correct times. See October 2022 Board Hearing at 8. However, it has been greater than 90 days since the Veteran and his spouse completed the PCAFC application in October 2020. 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 December 2020 CEAT Review and 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. In the order deemed appropriate, 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 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 MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.