Case: 19-1072 Document: 44 Page: 1 Filed: 01/31/2020
United States Court of Appeals
for the Federal Circuit
______________________
DENNIS M. O’BRIEN,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1072
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-2651, Judge Coral Wong Pi-
etsch, Judge William S. Greenberg, Judge Amanda L. Mer-
edith.
______________________
Decided: January 31, 2020
______________________
CHRIS ATTIG, Attig Steel, PLLC, Little Rock, AR, ar-
gued for claimant-appellant.
REBECCA SARAH KRUSER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by JOSEPH H. HUNT, CLAUDIA BURKE,
ROBERT EDWARD KIRSCHMAN, JR.; CHRISTOPHER O.
ADELOYE, BRIAN D. GRIFFIN, Office of General Counsel,
Case: 19-1072 Document: 44 Page: 2 Filed: 01/31/2020
2 O’BRIEN v. WILKIE
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before WALLACH, CLEVENGER, and HUGHES, Circuit
Judges.
HUGHES, Circuit Judge.
This is a veterans’ benefits case. Mr. Dennis O’Brien
appeals a decision of the U.S. Court of Appeals for Veterans
Claims finding him ineligible to receive additional disabil-
ity compensation as the legal guardian of his grandson,
D.B. Because D.B. does not qualify as Mr. O’Brien’s de-
pendent under the benefits-granting statute, we affirm.
I
Mr. O’Brien is a Vietnam War veteran whose service-
connected disabilities make him eligible to receive compen-
sation both for himself and for certain “dependents.” See
38 U.S.C. § 1115 (2012) (providing “additional compensa-
tion for dependents”). Section 1115 does not define the
term “dependents,” but it lists specific monthly allotments
for veterans with (A) “a spouse but no child,” (B) “a spouse
and one or more children,” (C) “no spouse but one or more
children,” and (D) “a parent dependent upon such veteran
for support.”
Id. § 1115(1)(A)–(D). The definitions section
of the Veterans’ Benefits code (title 38) also does not in-
clude a definition of “dependents,” but it does define the
term “child.” See 38 U.S.C. § 101(4)(A). For purposes of
title 38 (with some exceptions not relevant here), a “child”
is an unmarried person who meets certain age restrictions
“and who is a legitimate child, a legally adopted child, a
stepchild who is a member of a veteran’s household or was
a member at the time of the veteran’s death, or an illegiti-
mate child [in certain circumstances].”
Id.
In 2012, Mr. O’Brien took legal guardianship of D.B.,
his stepdaughter’s minor son. Mr. O’Brien then requested
Case: 19-1072 Document: 44 Page: 3 Filed: 01/31/2020
O’BRIEN v. WILKIE 3
dependency compensation for D.B., explaining that he and
his late wife were D.B.’s caretakers since D.B.’s mother was
in a nursing home and his father was absent. The Depart-
ment of Veterans Affairs (VA) denied compensation for
D.B. because he was Mr. O’Brien’s unadopted grandchild
and it “only recognizes biological children, stepchildren or
adopted children”; the VA advised Mr. O’Brien that he
could reopen his claim with proof of D.B.’s adoption.
J.A. 178.
The Board of Veterans’ Appeals found no entitlement
to compensation for D.B. for the same reason. A divided
three-judge panel of the U.S. Court of Appeals for Veterans
Claims (Veterans Court) affirmed. Noting that the case in-
volved a matter of first impression, the Veterans Court de-
termined that, despite not expressly defining the term
“dependents,” Congress still unambiguously limited that
term to “spouses, children, and dependent parents” by
specifying the amount payable for each in § 1115. O’Brien
v. Wilkie,
30 Vet. App. 21, 26–27 (2018). The court there-
fore rejected Mr. O’Brien’s argument to apply the ordinary
dictionary meaning of the term. As it was undisputed that
D.B. did not meet the statutory definition of “child” under
§ 101(4)(A), the court found that Mr. O’Brien was not enti-
tled to compensation for D.B. 1
II
“We have exclusive jurisdiction to ‘review and decide
any challenge to the validity of any statute or regulation or
any interpretation thereof’ by the Veterans Court ‘and to
interpret constitutional and statutory provisions, to the ex-
tent presented and necessary to a decision.’ ” Sucic v.
Wilkie,
921 F.3d 1095, 1098 (Fed. Cir. 2019) (quoting
1 Having found the language of § 1115 unambiguous,
the Veterans Court declined to address Mr. O’Brien’s con-
stitutional avoidance arguments.
Case: 19-1072 Document: 44 Page: 4 Filed: 01/31/2020
4 O’BRIEN v. WILKIE
38 U.S.C. § 7292(c)). We review the Veterans Court’s stat-
utory interpretation de novo.
Id.
Mr. O’Brien argues that the Veterans Court erred by
interpreting § 1115 to limit dependency compensation to
spouses, children, and dependent parents. He urges us to
interpret the term “dependents” to include “any depend-
ents in a veteran’s family for whom he bears the costs of
dependency.” 2 Appellant’s Br. 33; Reply Br. 17.
2 Mr. O’Brien also argues that the Veterans Court’s
interpretation of § 1115—effectively requiring him to adopt
D.B. in order to receive additional benefits—violates his
Fifth Amendment right to equal protection, by infringing
his fundamental right of family association, without a com-
pelling governmental interest. However, Mr. O’Brien for-
feited this argument by failing to assert a constitutional
challenge before the Veterans Court. See Singleton v.
Shinseki,
659 F.3d 1332, 1334 n.2 (Fed. Cir. 2011) (ac-
knowledging “precedent for this court declining to hear ar-
guments, even constitutional arguments, not raised to
previous tribunals”). While he argued the doctrine of con-
stitutional avoidance, he did not argue that the VA Secre-
tary’s denial of compensation, or the statute itself, violated
equal protection principles. See, e.g.,
O’Brien, 30 Vet. App.
at 29 (noting that Mr. O’Brien “does not . . . ask the court
to find either or both Section 101(4)(A) and Section 1115
unconstitutional,” but rather “asks the court to apply the
doctrine of constitutional avoidance”).
In any event, we find Mr. O’Brien’s argument without
legal merit. Congress may, as it did here, make “rational”
“factual assumptions” to create a “relevant test of probable
dependency” for the administration of a benefits program,
even if “such rules inevitably produce seemingly arbitrary
consequences in some individual cases.” Califano v. Jobst,
434 U.S. 47, 53–54 (1977).
Case: 19-1072 Document: 44 Page: 5 Filed: 01/31/2020
O’BRIEN v. WILKIE 5
We agree with the Veterans Court that the plain lan-
guage of § 1115 does not permit such an expansive defini-
tion. Subsections (A) through (D) specify the amount of
compensation for particular categories of a veteran’s de-
pendents: spouses (with or without children), children, and
dependent parents. See 38 U.S.C. § 1115(1). Although Mr.
O’Brien argues that these categories of dependents are not
exclusive, he does not answer the logical next question of
what amount should be awarded to a veteran with another,
unlisted, type of dependent.
In its current structure, § 1115 only permits depend-
ency compensation for spouses, children, and dependent
parents of eligible veterans. D.B. does not fit within any of
these limited classes of dependents. Clearly, he is not Mr.
O’Brien’s spouse or parent; nor is he Mr. O’Brien’s child, as
defined by § 101(4)(A), because he is not Mr. O’Brien’s bio-
logical child, step-child, or legally adopted child. Therefore,
the Veterans Court correctly interpreted § 1115 as not
providing Mr. O’Brien dependency compensation for D.B.
We regret that the Veterans’ Benefits code currently
precludes support for the families of veterans like Mr.
O’Brien who do not fit within its constrained familial con-
figurations. However, it is for Congress—not this court—
to remedy such policy concerns.
III
We have considered Mr. O’Brien’s remaining argu-
ments and find them unpersuasive. The judgment of the
Veterans Court is affirmed.
AFFIRMED
No costs.
