Panel Application; Beaudette included expired claimants in the class; VA wrongfully denied claimants the right to seek Board review of Caregiver Program determinations; ask[ed] us to certify a class of people who have not sought Board review;

Beaudette, where we included expired claimants in the class. The Beaudette “[p]etitioners maintain[ed] that VA ha[d] revoked the benefits of nearly 20,000 recipients since the Caregiver Program began and that VA ha[d] withheld judicial review for all benefits decisions under the Caregiver program.”59 So petitioners “move[d] the Court to certify a class of claimants who received an adverse decision under the Caregiver Program, exhausted available review under the VHA, and have not been afforded the right to appeal to the Board.”60 We “determined that VA wrongfully denied claimants the right to seek Board review of Caregiver Program determinations.”61 Faced with the proposed class definition, we acknowledged that petitioners “ask[ed] us to certify a class of people who have not sought Board review.”62 In deciding to include those people in the class, we noted that “any attempt by the proposed class members to obtain Board review ‘would [have] amount[ed] to a useless act’ and [would have been] ‘futile’” because “the Secretary has stated that Caregiver Program benefits decisions are not reviewable by the Board, and of course, the Board cannot disobey the Secretary’s instructions.”63 In short, extraordinary circumstances, namely how “VA affirmatively prevented [tens of thousands of]
52 Bowling v. McDonough, No. 18-5263, 2021 WL 1249822, at *5 (Vet. App. Mar. 29, 2021).
53 Beaudette v. McDonough, No. 20-4961, slip op. (Vet. App. Apr. 19, 2021).
54 Bowling, 2021 WL 1249822, at *5-6.
55 Id. at *5 (emphasis added).
56 Id.
57 Id. at *6.
58 Id.
59 Beaudette, slip op. at 2.
60 Id.
61 Id. at 7.
62 Id.
63