Veterans & caregivers denied Caregiver Program benefits can now appeal regardless of right-of-appeal notice

Seriously disabled Veterans and family caregivers denied benefits under the Program of Comprehensive Assistance for Family Caregivers (PCAFC) can now appeal those decisions to the Board of Veterans’ Appeals, even if they don’t have a notice from the U.S. Department of Veterans Affairs (VA) outlining this right, which an appeals court granted last spring.

Organizations and attorneys representing Veterans and caregivers in the successful class action lawsuit naming the current VA secretary, Denis McDonough — Beaudette v. McDonough (20-4961) — launched a new website on Dec. 22, 2021, to help a potentially 400,000 eligible people understand their rights in the wake of the ruling by U.S. Court of Appeals for Veterans Claims.

“The website is an important step in getting Veterans and caregivers access to the resources and information that they need to secure the benefits they deserve,” said Amanda Pertusati, supervising staff attorney at Public Counsel’s Center for Veterans Advancement, in a statement. Public Counsel is class counsel in the case with the National Veterans Legal Services Program (NVLSP) and filed the lawsuit with pro bono counsel Paul Hastings LLP.

In a news release, the three entities said the website — http://www.vacaregiverclassaction.com — aims to provide Veterans and their families with information about the lawsuit, frequently asked questions and guidance on what to expect next.

“For years, VA has rejected or kicked Veterans and caregivers out of the Caregiver Program for illegal or incorrect reasons, or no reason at all,” NVLSP Director of Litigation Renee Burbank said in the statement. “The Beaudette decision is a pivotal decision because it recognizes that Veterans and their caregivers are entitled to appeal to the Board, and the courts, when the VA wrongfully denies them Caregiver Program benefits.”
In an email to RallyPoint, Burbank said that last year, VA denied 88% of applications for the tax-free stipends, the amounts of which are generally based on the level of care the Veteran requires and where the Veteran and caregiver live.

McDonough recently told Congress that this rate of denial is too high. He testified before the Senate Committee on Veterans’ Affairs on Dec. 1, 2021, that VA is on track to hire 2,300 people to review claims, bolster consistency in claims decision making and make sure the program is functioning the way Congress intended “because,” the secretary said, “eight in 10 people being denied is not what you intended.”

Wife of service-disabled Marine denied benefits

The facts underlying the case date to 2013, when Jeremy and Maya Beaudette applied and were initially approved for benefits under PCAFC, a Veterans Health Administration program for caregivers of Veterans who sustained or aggravated a serious injury in the line of duty on or after Sept. 11, 2001. Veterans eligible for Caregiver Program support must also need assistance with activities of daily living or personal care for supervision and protection, according to a 2018 VA Office of Inspector General audit.

As outlined in the court’s ruling, Jeremy Beaudette served for 10 years in the Marine Corps, completing five combat tours in Iraq and Afghanistan. During service, he sustained multiple concussions, resulting in a traumatic brain injury that left him legally blind. VA considered Jeremy 100% disabled due to his service-related injuries.

With PCAFC benefits approved in 2013, Maya quit her job to care for her husband full time. However, in 2017, VA asked Jeremy to be medically reassessed in person. At the time recovering from two surgeries, Jeremy was unable to attend the in-person examination, yet VA refused to delay its timing. In 2018, the family received notice they were no longer eligible for benefits. VA further argued that the Beaudettes did not have the right to have its decision reviewed by the Board of Appeals.

After unsuccessfully seeking relief through various VA channels, in July 2020, the family sued the VA secretary for the right to appeal to the Board, and to extend that right to other seriously disabled Veterans and family caregivers whose claims had been similarly denied.

A ruling in favor of Veterans and caregivers

In April 2021, the U.S. Court of Appeals for Veterans Claims issued a decision agreeing that “the Beaudettes have established an indisputable right to Board review” and, in certifying “class-wide relief,” concurring that other Caregiver Program claimants denied VA benefits have the same right.

The ruling means that hundreds of thousands of Veterans and their families may be entitled to program reinstatement, increased benefits or back pay, the legal groups said. The court required that VA provide notice to members of the class of their ability to appeal, a process VA began on Nov. 17, 2021, and won’t finish until June 2022.

Yet appeals to the Board can begin now: “You do not have to wait to receive the VA notice to exercise your right to appeal to the Board,” according to the website’s frequently asked questions. “You can appeal to the Board, or seek more information about your PCAFC decision, at any time prior to or after receiving the notice.”

Even after the secretary conceded that the program is not working as Congress intended and as letters go out informing eligible Veteran families of this new right — potentially unlocking millions of dollars in caregiving resources — VA on Dec. 3 filed an appeal asking the U.S. Court of Appeals for the Federal Circuit to reverse the lower court’s decision.

Learn more

Access the U.S. Court of Appeals for Veterans Claims: https://www.uscourts.cavc.gov.

Read the NVLSP news release: https://www.nvlsp.org/news-and-events/press-releases/nvlsp-public-counsel-and-paul-hastings-llp-announce-launch-of-appeals-proce.

Visit the VA Caregiver Program Class Action website for case documents, frequently asked questions and guidance: https://www.vacaregiverclassaction.com.

Read a VA fact sheet about eligibility for the Caregiver Program: https://ha.saccounty.net/benefits/VeteransServices/FAQ%20docs/VA%20Caregiver%20Support%20Program%20FAQ.pdf.

Read the court order in the case: https://www.nvlsp.org/images/uploads/Beaudette_Order_Granting_Petition_and_Class_Certification.pdf.

Read a VA Office of Inspector General audit of the program: https://www.va.gov/oig/pubs/VAOIG-17-04003-222.pdf.