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Op-Ed: Explaining The Caregiver Program and The Veteran's Judicial Review Act

Friday, June 25, 2021
The SCG Public Policy team welcomes Aimee Pila-Bravo as the Director of the Los Angeles Veterans Collaborative and is pleased to have her insight and expertise in veteran’s affairs. SCG’s Public Policy Agenda includes a commitment to supporting legislation affecting veterans and their families.

BY AIMEE PILA-BRAVO 


As a member of the armed forces for over ten years, I have witnessed our country make dramatic policy changes in housing, employment, and mental health to improve the lives of veterans and their families. I have also seen our nation come a long way in bringing awareness to the effects of Shellshock, Battle Fatigue, Post Traumatic Stress Disorder, Military Sexual Trauma, Moral Injury, and Invisible Wounds. All of these victories for veteran populations have been a result of extensive advocacy and community mobilization efforts. 

However, there is still much work to do. As Director of the Los Angeles Veterans Collaborative (LAVC), I have become a liaison for veteran-centered needs and help bring awareness to veterans’ issues and opportunities to support the community. There is an astonishing number of veterans who still struggle with the transition from their service. There are also always new obstacles emerging that prevent veteran populations from accessing the life-sustaining services they need. 

Today, the veteran community is focused on building awareness and support for the ability to appeal decisions for those in the Caregiver Program. The Program of Comprehensive Assistance for Family Caregivers (PCAFC), also known as the Caregiver Program, is open to veterans who were injured or experienced an aggravated injury in the line of duty after September 11, 2001, or on or before May 7, 1975. For a veteran to be eligible for the program, they must have a 70% or greater disability rating and need assistance with the activity of daily living. If they qualify for the program, their primary caregiver can receive several benefits for caring for the veteran. 

Historically, the Caregiver Program has lived within the scope of The Veterans' Judicial Review Act (VJRA), which Congress enacted in 1988 and created a comprehensive judicial review process for veterans’ benefits decisions. The Act gives exclusive jurisdiction regarding benefits under laws administered by the Department of Veteran Affairs. It also gives veterans the right to reopen claims, obtain independent medical opinions, and establishes the burden-of-proof standards. In other words, veterans may appeal an adverse decision regarding their benefits to this Court.

In 2015, the US Department of Veteran's Affairs decided that the Caregiver Program is not considered a “benefit” within the scope of the VJRA and can be excluded from the VJRA’s board-review mandate. Specifically, the VA stated that the Caregiver Program’s benefits “may not be adjudicated in the standard manner as claims associated with veterans' benefits." Since then, the VA has excluded the Caregiver Program from appellate review claiming jurisdictional issues with the court, and concluded that benefits decisions under the Caregiver Program may not be appealed to the Board. 

In April 2021, the Court of Appeals for Veterans Claims (CAVC) issued an opinion finding in favor of a petition to expand appellate rights to include the Board of Veteran’s Appeal (BVA) under the Caregiver Program. The class consists of all veterans who had exhausted review before the Veterans Integrated Service Networks (VISN) but were denied review before the BVA. The CAVC’s decision was a huge win that will impact not only Post 9/11 veterans but also MISSION ACT veterans. 

The VA Office of General Counsel is currently determining whether it will file an appeal in this case to the federal circuit. The veteran community has taken steps to encourage the VA not to appeal this case. If the court overturns the decision, thousands of disabled veterans and the family members who care for them will be left without due process. 

At the moment, the Los Angeles Veterans Collaborative Legal and Re-entry working group has been working with several organizations and leaders to address the benefits review process for veterans under the Caregiver Program. The working group has also been seeking out stakeholders in the veteran community with contacts who can influence policy and legislation to ensure that veterans and their caregivers have due process under this program.

You can learn more about the decision here. If you would like to get involved with the LAVC’s efforts, you can contact me directly at [email protected]

 

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