By Chad H. Lennon
In a 2021 class-action lawsuit of Beaudette v. McDonough, brought by the National Veterans’ Legal Services Program (NVLSP), the United States Court of Appeals for Veterans Claims (CAVC) opened the door for individuals denied access to the VA’s Program of Comprehensive Assistance for Family Caregivers (CAFC) to appeal their denials to the Board of Veterans’ Appeals.
Previously, the Department of Veterans Affairs (“VA”) stated this program was not appealable to the judiciary. However, in Beaudette, the Court ruled the judicial review is now available for program denials. Those veterans who were denied in the past should have received notification from the VA stating they may now seek an appeal.
The CAFC program was established by Congress in 2010 to provide financial assistance to caregivers of combat veterans who were seriously injured. Since the inception of the program, the VA took the position that Congress intended to isolate determinations from review by a Board and the judiciary. The VA has taken the position that a medical determination is not appealable through the judiciary.
The Court concluded that Congress spoke clearly in mandating Board review of all decisions that affect the granting of benefits by the VA Secretary. It was also proposed during the case that the VA revoked approximately 20,000 recipients while withholding judicial review of the Caregiver Program. The Court directed the VA to send notice to all previous applicants who were previously denied that the law had changed along with the explanation of the procedure to obtain review of the previous decision.
Veterans are eligible for this program if they meet certain requirements. A few of the big-ticket requirements are a serious injury, needing at least six months of continuous in-person personal care services based on an inability to perform an activity of daily living or need of supervision, the services provided by the caregiver will not be simultaneously provided by another, and receiving care at home. The activities associated with daily living include dressing or undressing oneself, bathing, grooming, adjusting to any special prosthetic or orthopedic appliance, toileting, feeding oneself, and mobility.
The veteran will also undergo, or have undergone, a compensation and pension (C&P) exam, a home visit, and caregiver training (for the designated caregiver). It is also important to note that there is no need to connect the personal care service needed and qualifying serious injury.
The family caregiver must be over 18 years of age, someone who lives with the veteran full time, assessed to be able to complete the caregiver education and training by the VA, and complete the caregiver training. There may also be up to two secondary family caregivers who serve as backup support for the primary caregiver when needed. The primary and secondary caregiver may also be eligible to receive mental health counseling and reimbursement when traveling with the veteran in need.
Only the primary caregiver may receive a monthly stipend, access to health care benefits through the VA, and at least 30 days per year of respite care for the veteran.
To apply for this program, the veteran and caregiver should fill out the VA Form 10-10CG, while veterans seeking a further review of a previous decision must fill out the VA Form 10-305. Regardless of where a veteran is in their journey to receiving these benefits, knowing the required forms and procedure is the best way to expedite this sometimes-difficult process.
Chad Lennon is an attorney in the Military Law practice at Tully Rinckey PLLC and is a Major in the Marine Corps Reserve. Concurrently he is the Secretary for the New York State Bar Association Committee on Veterans, Co-Chair for the Suffolk County Bar Association Committee on Military and Veterans Affairs and is an Officer for the Suffolk County Bar Association Academy of Law. He can be reached at (646) 705-0049 or at [email protected].