Dazed and Confused Caregiver Denied

[Cavscout1977]

I've been 100% TDIU  for the past 13 years I am SMC with most the alphabets.  But primarily loss use of both feet and hands. When the Caregivers program opened for my wife we applied of course we were denied. The reason was my records do not indicate a need for a caregiver. Plus I guess the interview my wife and I did they did not feel I needed enough help. I can't drive. I can't wash my legs or feet. I can't put on my socks. So I'm going to see my PCP but not sure what needs to be done and not sure if it needs to be for a period of time. Any suggestions? comments. 

[jamescripps2]

Broncovet, that is just the problem. The VHA does not give a soc in a caregiver denial. They are not required to do that like the DVA is.

Your simple NOD is in the trash can in about thirty seconds. You cannot reason with these people so when you cite what "logic suggest" they would laugh at you. The VBA does not follow their own regulations and cannot be held to regulations like the VBA can. Dealing with the VBA and the CPAFC caregivers program is a whole new ball game and you have to re educate yourself to deal with them or just walk away.

The VBA caregivers program refuses to use the information contained in a C&P exam report and they will only consider the information contained in the medical records for the last twelve month period.

Considering what I stated above, a 11/14/2012 medical record that contained the fact that the veteran could not use his hands or feet could not be used.

The fact that the veteran could not cut up food nor get a fork to his chin is moot as the program only considers the act of chewing and swollowing the food, unlike the qualification for A&A.

Remember, you are dealing with a program that had the objective in October, 2020 to kick 90% of the legacy participants off of the program and only accept 13% of the new applicants from earlier eras who had just now been able to apply for the program.

We could not get legal representation because the lawyers and agents were fenced out of the program.

As a result of Jeremy Beaudette taking the matter to the CAVC and gaining the right for all caregivers cases to be heard at the BVA, I took my case to the Board and on June 22, 2022, I managed to win the very first case ever to be heard and granted by the BVA for level 2 caregiver benefits.

The Beaudette case, https://law.justia.com/cases/federal/appellate-courts/cavc/20-4961/20-4961-2021-04-19.html

You can see my BVA win at the BVA decisions search site, https://www.bva.va.gov/site_search.asp Type PCAFC caregiver in the search box. My case number is A22011682.

Edited January 15, 2023 by jamescripps2

[broncovet]

SOC's (Statement of case) are for legacy appeals, so no, SOC's are no longer required under AMA.  

But, a valid NOD on ANY issue needs to be addressed by the BVA.  (I dont recommend doing a HLR).  

If you look at the Chairmans report, you will see, that "not just" comp issues are adjudicated by the BVA..

https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2021AR.pdf

On page 40 (2021 report, the most recent), it shows that BVA adjuticated the following issues:

Compensation

Education

Fiduciary

Insurance

Loan Guaranty

And even "unspecified".  

    My advice is to file a NOD, send it certified mail return receipt requested.  If the Bva "trashes" your NOD and disregards your appeal, consider filing a writ of mandamus to compel The Board to address the caregiver issue.  

    My experience has been the BVA always "eventually" gets to issues to which I file a NOD.  "Assuming" the VA will throw it away, and not filing it, however, does not get a good result.  

[jamescripps2]

Bronco, you still don't get it! We, in this thread, are talking about the post 9/11 legacy participants in the PCAFC caregiver program. The discussion has nothing to do with the legacy and AMA appeals awaiting a BVA decision.

You can google VA's PCAFC caregiver program to see what we are talking about in answering the op's qustion.

[jamescripps2]

Bronco, you might say that we are not in the land of NOD. LOL

Seriously, a legacy participant in the CPAFC caregiver program is a veteran who was admitted into the caregiver program on or before October 1, 2020. Anyone admitted after October 1, 2020 is not considered legacy. 

The appeal process is much different for the legacy participant than it is for, say, the Vietnam era veteran. In either case, a NOD is not part of the caregiver appeal process. These cases are VHA cases until they make it to the BVA and then they are handed off to the VBA for adjudication, whereupon a BVA decision, they are returned back to the VBA, not the RO, for implmentation of the BVA decision.

I will say one more time, if a veteran was denied by the VBA for caregiver benefits, there was no statement of the case (SOC) issued, because the VBA was not required to furnish a SOC. If the veteran asked why he was denied, the answer seemed to be a secret. For that reason, all of the caregiver appeals are being remanded by the BVA, and the remand order is for the VBA to furnish a SOC so the Board can analize the decision in order to determine the VBA had made the correct decision.

My case remains the only case to not be remanded, but instead, to be granted by the Board, as of Jan 1, 2023. The reason that my case was granted at the Board was because it was cut and dried, was in compliance with all of the rules, met the qualifications, and therefore it needed no remand for a SOC.

 

[broncovet]

You may well be right "I dont get it".  It would not be my first time, of "not getting it".     However, the board does appeals "for a variety of issues", and, significantly, a SOC is no longer required for a Veteran to appeal to the BVA.  (Board of Veterans appeals).  

Many issues reach the BVA, not just comp/legacy/ama stuff.  I listed a few directly from the BVA chairmans report, above.  

"IF" you have received a written denial letter from VA, you can appeal it.  The VA website explains it this way:

 

Quote

If you disagree with a VA decision dated on or after February 19, 2019, you can choose from 3 decision review options (Supplemental Claim, Higher-Level Review, or Board Appeal) to continue your case. If you aren’t satisfied with the results of the first option you choose, you can try another eligible option.

This is not limited to comp/pen, but for all benefits claims.  Source:  VA website:

https://www.va.gov/decision-reviews/#:~:text=You can appeal to the,Law Judge review your case.&text=Find out what happens after you request a decision review.&text=If you're one of,to request a decision review.

The BVA website says it another way:

https://www.bva.va.gov/

MOST significantly, at the CAVC website, "caregiver" appears around 83 times.  These are board decisions where those are appealed, so the board likely had "many more" than 83 caregiver issues decided.  

http://search.uscourts.cavc.gov/search/

Certainly, "ONE" of us doesnt get it, at least.  

[jamescripps2]

You know bronco, neither one of us claim to fully understand all of it, and evidentally, neither does the VA. If the OP can read all that has been posted in this thread maybe he can figure out a direction. His question was"what can be done"?