If you submitted a caregiver aid application within the last 10 years and it was denied, you might have another chance to obtain financial benefits. VA didn’t allow anyone to appeal those decisions. Now the Court says they have to.
A Marine suffered a Traumatic Brain Injury in Southwest Asia which left him blind and, as far as the VA was concerned, 100% disabled. In 2013, he and his wife applied for caregiver benefits. The VA granted these benefits and the Marine’s wife quit her job to become a full-time caregiver. Four years later, the Marine did not participate in a follow-up medical examination because he was recovering from a pair of major operations. The VA pulled the plug. Then they refused to reconsider, claiming that caregiver benefits are not eligible for judicial review.
It wasn’t just one Marine. An estimated 20,000 families of disabled Veterans have lost their caregiver benefits or been denied benefits altogether because of the VA’s stance on this issue.
The Court of Appeals for Veterans Claims disagreed, ruling instead that “Congress has spoken unambiguously in mandating Board review of all decisions ‘under a law that affects the provision of benefits by the Secretary.’” CAVC also ordered the VA to review all caregiver judicial review denials since the program began in the early 2010s and draw up a plan to tell everyone that they are entitled to an appeal. This was a class action, meaning it applies to everyone who had their caregiver benefits denied whether or not they were part of this lawsuit.
Am I a Caregiver?
Both the Veteran and caregiver must meet certain qualifications for CAFC (Comprehensive Assistance for Family Caregivers) financial assistance. When Congress established this program in 2011, only post-9/11 Veterans were eligible. Recently, lawmakers extended this eligibility requirement to anyone who served before 1975. So far it doesn’t cover Veterans who served between 1975 and 2001, but VA is planning to fix that next year.
Furthermore, the Veteran must have a single disability, or a combination of disabilities, with at least a 70% rating. Additionally, the Veteran must have required continuous, personal care services for at least six months. Most often, this is for a disability like a brain injury, such as a Traumatic Brain Injury (TBI) and Post Traumatic Stress Disorder (PTSD), or a lost limb.
The caregiver qualifications are also rather straightforward. Eligible caregivers must be at least 18. They must be a member of the Veteran’s immediate or extended family, or be willing to live with the Veteran full-time.
The personal care services must involve one or more ADLs (Activities of Daily Living), such as:
- Dressing and/or undressing,
- Cooking and/or eating,
- Prosthetic device adjusting,
- Warning the Veteran about security hazards, such as cutting things with a sharp knife, and
- Assisting the Veteran on a daily basis, mostly things like reminding the Veteran about appointments and required medication.
Typically, the Veteran must consistently need help with at least one ADL or need continual assistance, protection, and/or supervision because of a serious neurological or other impairment.
After eligible Veterans submit to a Compensation and Pension medical examination, and a Claims Examiner also evaluates the caregiver’s role, the VA assigns a rating. This rating could be high dependence (40 hours of professional care services a week), moderate (25 hours), or low (10 hours).
In addition to the home health benefit, eligible households usually receive free VA medical care, reimbursement for medical-related travel expenses, a monthly stipend, and 30 days a year of respite care. If a claimant was denied under the old CAFC rules, the claimant could now be entitled to retroactive benefits. These retroactive benefits could be substantial.
Retroactive benefits are available in other VA disability claims as well. The effective date is not always easy to determine.
TDIU (Total Disability due to Individual Unemployability) is a good example. This will apply to a lot of the same Veterans. Someone with a 70% rating who needs consistent personal care would likely be eligible for TDIU. But even if VA decides you are individually unemployable—unemployable meaning unable to find substantial, gainful employment outside of a sheltered environment like a family-owned business—they still have to determine when you started being eligible. This can be complicated.
Count on Capable Attorneys
Caregivers who were previously denied benefits might now have a second bite at the apple. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, P.C. at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.