Two survivors of veterans who died from military-related illnesses are challenging the Department of Veterans Affairs' practice of dropping family caregiver application appeals once a veteran passes away.
The daughter of an Army Vietnam veteran who cared for her father in his final years and the wife of a separate Vietnam-era veteran filed a potential class-action suit Monday in federal court arguing that their cases should still be considered by the Board of Veterans Appeals even though their veterans had died.
Both had received denials for entry to the VA's Program of Comprehensive Assistance for Family Caregivers, and both had appealed their cases. The board issued automatic denials when the veterans died.
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"When a veteran dies, the VA should provide extra support to the caregiver suffering that loss. Instead, it is arbitrarily denying appeals from caregivers and refusing to pay them the benefits they have earned," said Renee Burbank, director of litigation for the National Veterans Legal Services Program, in a statement Tuesday.
VA officials declined to comment, saying they do not weigh in on pending litigation.
In both cases, the board decided that, because the program requires that the veteran be admitted to the program for the caregiver to receive benefits, it did not need to consider appeals of cases belonging to deceased veterans.
Attorneys for the plaintiffs believe that the board should not automatically drop cases and give caregivers the chance to appeal the board's decisions to the U.S. Court of Appeals for Veterans Claims so that they can receive compensation for the period of time they served as caregivers, helping to offset what can be substantial residual bills for an injured veteran.
"We're not 100% sure about whether this is a procedure or policy of the board, or [whether] a whole bunch of board members are all coming to the same conclusion [that they don't have to consider these cases]. Whatever it is, we think the court needs to step in and correct it," Burbank said during an interview Thursday with Military.com.
The two plaintiffs believe that, if they win their cases, they should receive benefits from the time they filed their application for the program and their veterans' deaths.
Sharon Presley and her father applied for caregiver benefits based on the veteran's need for around-the-clock care for liver cancer. They were denied entry to the program but provided a letter to the Board of Veterans Appeals from the father's doctor saying he needed "almost complete and total care" in his final years.
He died while the appeal was pending, and Presley was denied further consideration.
The board also denied Shyrl Bolton-Pellerin, whose husband also needed significant assistance. The VA reviewed the case and said the Pellerins should have been admitted to the program, but the final acceptance had not yet been processed when the veteran died. The board also denied their claim.
Burbank estimates that dozens of caregivers may be affected by the practice each month. The plaintiffs are represented by NVLSP and Chisholm Chisholm & Kilpatrick. A federal judge must determine whether their cases will continue as a class action.
The VA's family caregiver program provides training, counseling, health care and a monthly stipend of between $1,800 to $2,800 a month for an individual who assists severely ill or injured veterans with their daily needs, such as dressing, bathing, eating and cleaning.
Roughly 15,000 veterans are in the program, according to the VA.
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