PCAFC VA Appeals Process

[Lemuel]

There is a different problem that is outside of VA Benefits.  PCAFC is done by VAHA, not VABA.  So, we have one more review problem.  VAHA is not reviewable by law because medical reports are not reviewable even if they are clearly erroneous such as an Xray that is reported WNL and reviewed as such in you Primary Care visit record but clearly shows old bone injuries.  A kidney that has been injured reported as WNL though the ultrasound clearly showed the injury enough that the technician called the Dr. for a look because the view mimics possible cancerous lesions.  Medical legal reporting is not allowed to be done by the VAHA physicians.  ROs and DROs can limit the examinations being done by C&P examiners.  These are not challengeable.

Facts are determined only by the BVA to be actual Fact.  They are determined upon these unchallengeable reports if you cannot afford or find an independent examiner that is considered competent by the BVA to report precisely the errors made in the language required by the BVA--unlikely, likely, more likely than not, or absolutely erroneous, the standard being "Generally accepted clinical practice".  Laws do not cover deviations and malpractice is extremely difficult to prove when the medical reports are unchallengeable.  AMA lobbying is responsible as well and lobbying against military personnel care competing with military hardware dollars in the Budget by the military industrial complex as warned about in General Isenhower's Presidential farewell speech.

VAHA is also the first reviewer of PCAFC claims.  How can you get even a BVA correction if the VAHA reports are not reviewable?  We need to work on this quirk in the law with our Congress.  Bad enough that the VA General Counsel can rewrite the U S CODE via his interpretation of the Code in Regulations and get a blanket Congressional Approval from Congress in the way Regulations are established as the actual effect of administering the law passed by Congress.  It appears the DOJ actually writes the finalization of the law passed by Congress and signed by the President.  Whole books being not read by the sponsors of legislation allowing the legislation to be actually changed and turned upon its head.  See Haskell v McDonough YouTube video.  Now Laska v McDonough, CAVC 22-1082 because of the death of Mr. Haskell and a substitution for the appellant.  Heard in an August 2023 3 Juge panel hearing but still no decision reported out.

[Lemuel]

Update.  Room permitting I will attach a couple of Appeals Court decisions.  2/27/24 and later.

Case Number:20-4961Docketed: 07/15/2020  Docket link:  20-4961 Docket (cavc.gov)

Jeremy and Maya Beaudette v. Denis McDonough

Appeal From: Department of Veteran Affairs

CAVC Opinion on above.

22-1264.OPINION.2-27-2024_2276809.pdf (uscourts.gov)

From the CAVC ORDER now in effect since 2/27/24.

We are now in appealable grounds through some medical reports.  Read the decisions carefully.

For those with PCAFC claims that have been denied, I am copying and pasting from the CAVC Order that is now the Law and you only have to contact one of the attorneys in the above docket link for CAVC 20-4961.

"B. Class Action
Having determined that VA wrongfully denied claimants the right to seek Board review of
Caregiver Program determinations, the Court must determine the appropriate relief. Petitioners ask
us to certify a class of individuals who (1) received an adverse decision under the Caregiver
Program, (2) exhausted available review under the VHA, and (3) have not been afforded the right
to appeal to the Board. Class Motion at 1. Notably, while petitioners sought appeal to the Board
(and to date have received no response), they ask us to certify a class of people who have not
sought Board review. In this respect, the Court discerns no failure to exhaust administrative
remedies because any attempt by the proposed class members to obtain Board review "would
amount to a useless act" and be "futile." Wolfe v. Wilkie, 32 Vet. App. 1, 39(2019). The Secretary
has stated that Caregiver Program benefits decisions are not reviewable by the Board, see 80 Fed.
Reg. at 1366, and of course, the Board cannot disobey the Secretary's instructions. § 7104(c).
The Court has set forth the prerequisites for seeking class certification in Rule 23 of our
Rules of Practice and Procedure. 3 These are first, that the class is so numerous that consolidating
individual actions in the Court is impracticable; second, that there are questions of law or fact
common to the class; third, that the legal issue or issues being raised by the representative parties
on the merits are typical of the legal issues that could be raised by the class; fourth, that the
representative parties will fairly and adequately protect the interests of the class; and, fifth, that the
Secretary or one ( or more) official, agent, or employee of the Department of Veterans Affairs has
acted or failed to act on grounds that apply generally to the class, so that final injunctive or other
relief is appropriate respecting the class as a whole. U.S. VET. APP. R 23(a). Further, the Court
considers whether class-wide relief is "superior" insofar as it better serves the interests of justice
than a precedential decision. U.S. VET. APP. R. 22( a )(3 ).
The Secretary does not dispute that the numerosity, commonality, and adequacy of
representation factors are met in this case. Nor does the Secretary dispute that this action alleges
that the Secretary has acted or failed to act on grounds that apply generally to the proposed class.
After reviewing the record and the parties' briefs, we conclude that these four factors are satisfied."

1 Beaudette v McDonough CAVC order.pdf 1 Beaudette v McDonough.pdf