Case: 19-2441 Document: 22 Page: 1 Filed: 06/11/2020
United States Court of Appeals
for the Federal Circuit
______________________
SAMANTHA E. CARR, ROBERT M. CARR,
Claimants-Appellants
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2441
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-3438, Chief Judge Margaret C.
Bartley, Judge Coral Wong Pietsch, Judge Joseph L. Toth.
______________________
Decided: June 11, 2020
______________________
SAMANTHA E. CARR, ROBERT M. CARR, Alexandria, VA,
pro se.
SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by JOSEPH
H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA
PREHEIM; Y. KEN LEE, BRYAN THOMPSON, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________
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2 CARR v. WILKIE
Before REYNA, CHEN, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
This case is about veterans’ educational assistance
benefits. Father-daughter appellants Robert and Saman-
tha Carr appeal a decision of the U.S. Court of Appeals for
Veterans Claims upholding a mid-semester termination of
education benefits Ms. Carr received from her father.
Based on a regulation specific to dependents’ use of trans-
ferred benefits, the Board of Veterans’ Appeals had denied
Ms. Carr’s request to extend her benefits until the end of
her school semester. The Veterans Court, however, re-
solved the appeal purely through statutory interpretation
and did not address the transferred benefits regulation.
Because we disagree with the Veterans Court’s interpreta-
tion of the statutes in question, we reverse and remand for
consideration of the unaddressed regulatory challenge.
I
Congress provides, through the Department of Veter-
ans Affairs (VA), educational assistance in the form of mon-
etary benefits to veterans under several chapters of
title 38, part III, of the U.S. Code. Different chapters con-
tain the distinct benefits programs available based on mil-
itary service during different eras. For instance,
Chapter 34 houses what is known as the Vietnam-era GI
Bill, while Chapter 33 houses the Post-9/11 GI Bill. Each
chapter’s educational assistance program carries distinct
benefits and requirements. Chapter 36 (“Administration of
Educational Benefits”), as its name suggests, contains
overarching administrative provisions that apply across
the various chapters. The key provision of Chapter 36 for
present purposes is 38 U.S.C. § 3695, which—as will be dis-
cussed in greater depth—makes 48 months the maximum
“aggregate period” of education benefits a veteran may
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CARR v. WILKIE 3
receive under two or more identified programs. 1 38 U.S.C.
§ 3695(a). Subsection (a) lists the many programs subject
1 The full text of § 3695 reads:
Limitation on period of assistance under two or
more programs
(a) The aggregate period for which any person may
receive assistance under two or more of the provi-
sions of law listed below may not exceed 48 months
(or the part-time equivalent thereof):
(1) Parts VII or VIII, Veterans Regulation
numbered 1(a), as amended.
(2) Title II of the Veterans’ Readjustment
Assistance Act of 1952.
(3) The War Orphans’ Educational Assis-
tance Act of 1956.
(4) Chapters 30, 32, 33, 34, and 36.
(5) Chapters 107, 1606, 1607, and 1611 of
title 10.
(6) Section 903 of the Department of De-
fense Authorization Act, 1981 (Public Law
96-342, 10 U.S.C. 2141 note).
(7) The Hostage Relief Act of 1980 (Public
Law 96-449, 5 U.S.C. 5561 note).
(8) The Omnibus Diplomatic Security and
Antiterrorism Act of 1986 (Public Law 99-
399).
(b) No person may receive assistance under chap-
ter 31 of this title in combination with assistance
under any of the provisions of law cited in subsec-
tion (a) of this section in excess of 48 months (or the
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4 CARR v. WILKIE
to the general 48-month cap, including those under Chap-
ters 30, 32, 33, 34, and 36.
Id. § 3695(a)(4). Subsections (b)
and (c) set different parameters for two additional chapters
in title 38, part III: veterans with service-connected disa-
bilities receiving training and rehabilitation under Chap-
ter 31 may exceed the 48-month cap to receive additional
Chapter 31 benefits with the VA Secretary’s permission,
see
id. § 3695(b); and the surviving spouses and dependents
of veterans who have died of service-connected disabilities
may receive up to 81 months of benefits under Chapter 35
in combination with any of the programs listed in subsec-
tion (a), see
id. § 3695(c).
Mr. Carr served on active duty in the Air Force from
1976 to 1980, thereby earning 45 months of education ben-
efits under Chapter 34 (the Vietnam-era GI Bill), see
id.
§ 3461(a). Mr. Carr used 41 months and 11 days of those
Chapter 34 benefits for his own education before the entire
Chapter 34 program expired, see
id. § 3462(e) (“No educa-
tional assistance shall be afforded any eligible veteran un-
der this chapter or chapter 36 of this title after December
31, 1989.”). After the events of September 11, 2001, Mr.
part-time equivalent thereof) unless the Secretary
determines that additional months of benefits un-
der chapter 31 of this title are necessary to accom-
plish the purposes of a rehabilitation program (as
defined in section 3101(5) of this title) in the indi-
vidual case.
(c) The aggregate period for which any person may
receive assistance under chapter 35 of this title, on
the one hand, and any of the provisions of law re-
ferred to in subsection (a), on the other hand, may
not exceed 81 months (or the part-time equivalent
thereof).
38 U.S.C. § 3695 (emphasis added).
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CARR v. WILKIE 5
Carr returned to active duty as a member of the Air Force
Reserves, and would have been eligible for 36 additional
months of benefits under Chapter 33 (the Post-9/11 GI
Bill), see
id. § 3312(a)—except
that § 3695 limited him to a
cumulative total of 48 months, including the 41 months
and 11 days already used. See
id. § 3695(a)(4).
Mr. Carr
thus earned 6 months and 19 days of Chapter 33 education
benefits.
Effective August 1, 2009, Mr. Carr transferred his
Chapter 33 benefits to his daughter, as authorized by
38 U.S.C. § 3319. Ms. Carr used some of these benefits to
pay for two semesters of approved classes at the University
of Nevada in the Spring and Fall of 2010. Due to a VA cal-
culation error, she initially did not receive payments to
cover the final days of the Fall 2010 semester and was in-
formed (incorrectly, it turns out) that she had exhausted
her benefits.
In August 2013, as Ms. Carr was beginning another se-
mester at the University, it was discovered that she in fact
had an additional 19 days of education benefits remaining.
Therefore, 18 days of benefit payments were applied retro-
actively toward the Fall 2010 semester, and one day was
applied to the beginning of the Fall 2013 semester. When
notified that the benefits were exhausted, Mr. Carr paid
the rest of the Fall 2013 semester’s tuition. But the Carrs
also sought an extension of benefits to the end of the Fall
2013 semester, as authorized by Chapter 33.
Chapter 33 permits end-of-term extensions of educa-
tion benefits in a roundabout way, incorporating preexist-
ing provisions of Chapter 30, known as the Montgomery GI
Bill. Section 3312(a) provides the general Chapter 33 edu-
cation benefits entitlement. 38 U.S.C. § 3312(a) (“Subject
to section 3695 and except as provided in subsections (b)
and (c),” an eligible veteran “is entitled to” 36 months of
educational assistance). Section 3312(b), governing “[c]on-
tinuing receipt” of benefits makes their receipt “subject to
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6 CARR v. WILKIE
the provisions of section 3321(b)(2).”
Id. § 3312(b). Sec-
tion 3321(b)(2), in turn, makes 38 U.S.C. § 3031(f)—per-
mitting end-of-term extensions of benefits for Chapter 30
recipients—applicable to Chapter 33 recipients. As incor-
porated into Chapter 33, § 3031(f)(1) provides:
If an individual eligible for educational assistance
under this chapter is enrolled under this chapter in
an educational institution regularly operated on
the quarter or semester system and the period of
such individual’s entitlement under this chapter
would, under section [3312], expire during a quar-
ter or semester, such period shall be extended to
the end of such quarter or semester.
38 U.S.C. § 3031(f)(1) (altered as directed by § 3321(b)(2)).
Thus, when a veteran’s Chapter 33 benefits are exhausted
during a school semester, the VA must continue to pay ben-
efits until the end of that semester. See
id. §§ 3031(f),
3312(b), 3321(b)(2). The VA regulation implementing
these statutes similarly states:
If an individual enrolled in an institution of higher
learning that regularly operates on the quarter or
semester system exhausts his or her entitlement
under 38 U.S.C. chapter 33, the effective discontin-
uance date will be the last day of the quarter or se-
mester in which the entitlement is exhausted.
38 C.F.R. § 21.9635(o)(1).
Ms. Carr sought such an extension from the VA but
was denied by the regional office. She then appealed to the
Board of Veterans’ Appeals, arguing that under § 21.9635,
her benefits payments should have continued through the
end of the Fall 2013 semester. The Board disagreed, rely-
ing on a different subsection of the same regulation, which
applies specifically to dependents of veterans:
(y) Dependent exhausts transferred entitlement.
The ending date of an award of educational
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CARR v. WILKIE 7
assistance to a dependent who exhausts the enti-
tlement transferred to him or her is the date he or
she exhausts the entitlement.
38 C.F.R. § 21.9635(y). The Board reasoned that on Au-
gust 26, 2013 (the first day of the Fall 2013 semester), Ms.
Carr had exhausted the 6 months and 19 days of Chap-
ter 33 education benefits transferred from her father, and
under § 21.9635(y), those benefits could not be extended.
A divided three-judge panel of the Veterans Court af-
firmed the Board’s decision. Carr v. Wilkie,
31 Vet. App. 128 (2019). The Carrs “challenge[d] the va-
2
lidity of 38 C.F.R. § 21.9635(y) and VA’s disparate treat-
ment of veterans and dependents to whom benefits have
been transferred.”
Id. at 129 n.1. 3 But the Veterans Court
declined to address this question, opting instead to resolve
the appeal based on the four statutes described above.
Id.
The Veterans Court held that § 3695 imposes a strict 48-
month cap on benefits that precludes otherwise authorized
end-of-term extensions if the extension would result in
more than a total of 48 months of benefits.
Id. at 134–35.
The panel majority reasoned that the Chapter 33 ben-
efits provided in § 3312(a) were expressly subject to both
§ 3695’s 48-month cap for dual-program beneficiaries and
to § 3031(f)(1)’s end-of-term extension provision.
Id. at
132; see 38 U.S.C. § 3312(a) (“Subject to section 3695 and
except as provided in subsection[] (b),” which incorporates
§ 3031(f)(1) as described above, an eligible veteran is enti-
tled to 36 months of benefits. (emphasis added)). But it
perceived an “apparent conflict” between § 3695 and
§ 3031(f)(1), with the former unequivocally capping bene-
fits at 48 months and the latter extending benefits
2 Mr. Carr was allowed to intervene in the appeal.
3The parties’ submissions to the Veterans Court do not ap-
pear in the record.
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8 CARR v. WILKIE
whenever they expire during the
semester. 31 Vet. App. at
131–32. In the panel majority’s view, the two sections
could coexist only if § 3031(f)(1) “holds to its lane” operating
only within its individual, program-specific chapter—and
not as an “exception” to § 3695.
Id. at 134.
The majority read subsections (b) and (c) as the only
two “express exceptions” to § 3695’s 48-month aggregate
cap.
Id. at 133. Because Congress did not also carve out
an exception for end-of-term extensions, and because
§ 3031(f)(1) does not refer to § 3695, the majority concluded
that Congress did not intend § 3031(f)(1) to serve as an ex-
ception to § 3695.
Id. at 133–34. As shown by its place-
ment within a program-specific chapter, rather than in
Chapter 36’s general administration scheme, § 3031(f)(1)
“applied only within the particular chapter in which it was
placed and was not intended to override” § 3695’s multi-
chapter governance provisions.
Id. at 134. “Under the
[Veterans] Court’s reading, § 3031(f)(1) and § 3695 function
in unison, with the former serving as an exception to the
36-month limitation of benefits and the latter imposing a
48-month cap on the back end for dual-program recipients.”
Id. at 135.
In contrast, dissenting Judge Pietsch did not view
§ 3031(f)(1) and § 3695 as conflicting at all.
Id. at 135–37.
She saw § 3695(a) as restricting benefits awards to no more
than 48 months, and § 3031(f)(1) instructing that when
those 48 months end mid-semester, payments will continue
until the end of the term.
Id. at 136–37. Noting that § 3695
applies broadly to programs both within and beyond ti-
tle 38, Judge Pietsch found no indication that § 3695
should silently terminate end-of-term extensions that are
both unique to and “a recurring feature of title 38 part III.”
Id. at 137. Without a clear statement to that effect, and
given the court’s duty to resolve close interpretive ques-
tions in the veteran’s favor, she would have held that ben-
efits continue until the end of the semester in which a dual-
program beneficiary reaches the 48-month cap.
Id. at 138.
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CARR v. WILKIE 9
The Veterans Court denied the Carrs’ requests for
panel reconsideration and full-court review. Carr v. Wilkie,
No. 16-3438,
2019 WL 3083084 (Vet. App. July 16, 2019).
The Carrs appeal, representing themselves as they have
throughout the VA proceedings.
II
We have jurisdiction to review a decision of the Veter-
ans Court “on a rule of law or of any statute or regula-
tion . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on by
the Court in making the decision.” 38 U.S.C. § 7292(a). We
may review “any challenge to the validity of any statute or
regulation or any interpretation thereof” and we may “in-
terpret constitutional and statutory provisions, to the ex-
tent presented and necessary to a decision.”
Id. § 7292(c);
see Sucic v. Wilkie,
921 F.3d 1095, 1098 (Fed. Cir. 2019).
We review the Veterans Court’s statutory interpretation de
novo.
Sucic, 921 F.3d at 1098.
The Carrs present two arguments on appeal: that the
Veterans Court incorrectly interpreted § 3695, and that
38 C.F.R. § 21.9635(y) is invalid. We begin with the statu-
tory interpretation question, as it is the only issue we pres-
ently have jurisdiction to resolve.
As always, we start with the text of the statutes at is-
sue. See Mulder v. McDonald,
805 F.3d 1342, 1345 (Fed.
Cir. 2015) (“Statutory interpretation begins with the words
of the statute.” (citing Barnhart v. Sigmon Coal Co., Inc.,
534 U.S. 438, 450 (2002))). Although sections 3031(f)(1)
and 3695 might seem to tug in opposite directions, they can
be harmonized without turning § 3695 into a ban on end-
of-term extensions for multi-program beneficiaries.
Section 3312—which indirectly incorporates
§ 3031(f)(1) extensions into Chapter 33—provides, as rele-
vant:
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10 CARR v. WILKIE
Educational assistance: duration
(a) In general.—Subject to section 3695 and except
as provided in subsections (b) and (c), an individual
entitled to educational assistance under this chap-
ter is entitled to a number of months of educational
assistance under section 3313 equal to 36 months.
(b) Continuing receipt.—The receipt of educational
assistance under section 3313 by an individual en-
titled to educational assistance under this chapter
is subject to the provisions of section 3321(b)(2)
[and, by extension, § 3031(f)(1)].
38 U.S.C. § 3312 (emphasis added). 4 We agree with the
Veterans Court majority that § 3312 plainly makes Chap-
ter 33 benefits simultaneously “[s]ubject to” both the
§ 3695 aggregate cap and § 3031(f)(1) extensions.
Id.
§ 3312(a); see
id. § 3312(b) (incorporating § 3031(f)(1)
through reference to § 3321(b)(2)). But being “[s]ubject to
section 3695” does not necessarily mean being subject to
§ 3695 “on the back end,” as the Veterans Court majority
assumed,
Carr, 31 Vet. App. at 135. It seems to us far more
natural, and more consistent with congressional preroga-
tives, to read § 3695 as operating on the “front end” (so to
speak) to calculate the number of days of education bene-
fits to which a veteran is entitled.
Section 3695(a) states: “The aggregate period for
which any person may receive assistance under two or
more of the [identified] provisions of law . . . may not exceed
48 months (or the part-time equivalent thereof) . . . .” Alt-
hough § 3695 speaks in terms of “receiv[ing] assistance,”
that does not mean that it dictates the day on which bene-
fits payments must cease. In our view, § 3695 simply
means that a veteran may not receive an award of benefits
4 Subsection (c) regarding discontinuation of educa-
tion for recipients entering active duty is not relevant here.
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CARR v. WILKIE 11
under a subsequent program that would result in her being
able to use greater than 48 months of benefits overall. See
Davenport v. Principi,
16 Vet. App. 522, 527 (2002) (“[T]he
plain language of section 3695(a) prohibits the award of
benefits for an aggregate period of more than 48 months for
education benefits . . . .” (emphasis added)). That is, § 3695
defines the maximum allowable benefit period—while leav-
ing the precise termination date to be determined by the
operative benefit-providing chapter.
Indeed, this is how the VA seems to have used § 3695
in Mr. Carr’s case. The Board of Veterans Appeals noted
that Mr. Carr “was entitled to a total of 48 months of edu-
cational benefits”; he previously completed 41 months and
11 days of the benefits under Chapter 34; and he “[c]onse-
quently, . . . had 6 months and 19 days of entitlement left
to transfer” to Ms. Carr. Supplemental Appendix 16, 19.
In denying Ms. Carr’s appeal, the Board cited § 3695 just
once, to establish the number of days of benefits her father
“had” on the date that he transferred those benefits to her.
Id. at 20–21.
A parallel provision of Chapter 34 (the Vietnam-era GI
Bill) supports our reading. In language mirroring that of
§ 3695(a), Chapter 34 caps its single-program benefits at
45 months: “Except as provided in subsection (b) . . . , no
eligible veteran shall receive educational assistance under
this chapter in excess of 45 months.” 38 U.S.C. § 3461(c)
(emphasis added); cf. 38 U.S.C. § 3695(a) (“The aggregate
period for which any person may receive assistance under
two or more of the [identified] provisions of law . . . may not
exceed 48 months . . . .” (emphasis added)). Despite this
seemingly strict language, however, section 3461(b)
equally forcefully requires end-of-term extensions.
38 U.S.C. § 3461(b) (“Whenever the period of entitlement
under this section of an eligible veteran who is enrolled in
an educational institution regularly operated on the quar-
ter or semester system ends during a quarter or semester,
such period shall be extended to the termination of such
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12 CARR v. WILKIE
unexpired quarter or semester.”). Thus, Congress has not
viewed placing a cap on receiving benefits as inconsistent
with extending benefits beyond that capped duration.
Of course, a notable textual difference between § 3461
and § 3695 is that § 3461 explicitly states its exception for
end-of-term extensions. See
id. § 3461(c). The Veterans
Court majority placed heavy weight on the absence of this
sort of end-of-term extension exception from § 3695. We
find this silence less telling.
First, we disagree with the Veterans Court majority’s
characterization of § 3695(b) and § 3695(c) as “express ex-
ceptions” to the 48-month cap established in § 3695(a).
Carr, 31 Vet. App. at 133, 135. The statute does not de-
marcate subsections (b) or (c) as “exceptions.” And both
subsections simply set different parameters for benefits
combined with chapters not listed in subsection (a) as sub-
ject to the 48-month cap. See 38 U.S.C. § 3695(b) (aggre-
gate cap for Chapter 31), (c) (aggregate cap for Chapter 35);
see also
id. § 3695(a)(4) (not identifying Chapters 31 or 35).
Subsections (b) and (c) may be confused for exceptions
because subsection (a) states a rule that applies to a
greater number of programs, but they do not describe sce-
narios in which subsection (a)’s 48-month cap does not ap-
ply within the covered programs. Thus, the presence of
subsections (b) and (c) does not make it odd for Congress to
have omitted an exception for end-of-semester extensions
provided under individual programs that are listed in sub-
section (a).
Second, unlike the individual benefits program chap-
ters, Chapter 36 itself is not a source of veterans benefits.
There is no such thing as “Chapter 36 benefits.” Rather,
Chapter 36 provisions like § 3695 sit above and apply
across the chapter-specific programs, which each contain
varied benefits accrual, duration, and termination provi-
sions. As Judge Pietsch noted, § 3695 also addresses a
wide array of programs beyond part III of title 38. See
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CARR v. WILKIE 13
§ 3695(a)(1), (2), (5)–(8). 5 In such a scheme, it makes sense
that the drafters of § 3695 would leave the details of termi-
nation timing to the programs that were providing benefits
in the first place. 6
In fact, in its original form, the aggregate multi-pro-
gram cap currently found in § 3695 did contain an excep-
tion for end-of-term extensions. When the Vietnam-era GI
Bill was enacted in 1966 (codified in the newly created
Chapter 34), it contained a 36-month aggregate cap on re-
ceipt of education benefits under Chapter 34 in combina-
tion with education and training received under other
programs, including Chapters 31, 33 (then containing edu-
cation benefits for Korean Conflict Veterans), and 35. See
Veterans’ Readjustment Benefits Act of 1966, Pub. L.
No. 89-358, § 2, 88 Stat. 12, 13–14 (1966). As codified in
then 38 U.S.C. § 1661, subsection (b) stated:
Except as provided in subsection (c), in no event
shall an eligible veteran receive educational assis-
tance under this chapter for a period which, when
combined with education and training received un-
der any or all of the laws listed below, will exceed
thirty-six months[.]
38 U.S.C. § 1661(b) (Supp. II 1964) (emphasis added). In
turn, subsection (c) required end-of-term extensions
5 We note that many of the referenced provisions
have long-since been repealed.
6 Chapters 31 (Vocational Rehabilitation) and 32
(Post-Vietnam Era Veterans’ Educational Assistance Pro-
gram) do not provide end-of-term extensions, while Chap-
ters 30, 33, 34, and 35 do. See 38 U.S.C. § 3031(f)(1) for
Ch. 30; 38 U.S.C. §§ 3312(b), 3321(b)(2), 3031(f)(1) for Ch.
33; 38 U.S.C. § 3461(b) for Ch. 34; and 38 U.S.C.
§§ 3511(b), 3512(a)(7) for Ch. 35.
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14 CARR v. WILKIE
“[w]henever the period of entitlement . . . ends during a
quarter or semester.”
Id. § 1661(c) (Supp. II 1964).
In 1968, Congress moved § 1661(b)’s aggregate cap
from Chapter 34 to the new overarching Chapter 36 and
increased the cap to 48 months. See Act of Oct. 23, 1968,
Pub. L. No. 90-631, § 1(b), § 1(d)(1), 82 Stat. 1331, 1331
(1968) (enacting 38 U.S.C. § 1791 as a new section in
Ch. 36). When it did so, however, it left the program-spe-
cific end-of-term extension provision where it sat in § 1661,
simply redesignating it from subsection (c) to (b). See id.;
38 U.S.C. § 1661(b) (Supp. IV 1964) (currently codified at
38 U.S.C. § 3461(b)). The new multi-program 48-month ag-
gregate cap provision, at its new post in Chapter 36, no
longer included the introductory exception for end-of-term
extensions:
The aggregate period for which any person may re-
ceive assistance under two or more of the [identi-
fied programs, including Chapters 31, 34, 35, and
the former chapter 33] . . . may not exceed forty-
eight months . . . .
38 U.S.C. § 1791 (Supp. IV 1964). Through subsequent re-
numbering and amendments, the almost identical lan-
guage now appears in § 3695(a).
The government argues that by leaving the extensions
exception in Chapter 34 instead of carrying it into Chap-
ter 36, Congress intended to allow the VA to use end-of-
term extensions to exceed program-specific caps but not to
exceed the multi-program maximum. We are unwilling to
assume such anomalous treatment without a clearer ex-
pression of intent. The separation of the multi-program
maximum provision from the end-of-term extension provi-
sion during the 1968 transplant paints a murky picture of
congressional intent. While it could support the govern-
ment’s position, it could just as well reflect that Congress
was aware that certain chapters contained end-of-term
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CARR v. WILKIE 15
extension provisions 7 and therefore deemed it unnecessary
to repeat them—especially in a section also governing pro-
grams that did not authorize end-of-term extensions.
If anything is to be drawn from this legislative history,
it is that Congress did not clearly state how the aggregate
cap should affect the availability of end-of-term extensions.
The lack of a clear statement in § 1791 (now codified at
§ 3695) that then-existing program-specific end-of-term ex-
tensions must be cut off when they run past the end of the
48th month confirms our suspicion that the aggregate cap
was intended to inform the initial benefits duration enti-
tlement calculation—not the termination date.
Perhaps the clearest confirmation that § 3695 applies
to the initial entitlement calculation is found in the way
the programmatic chapters refer to it. Section 3312, which
kicks off the chain of incorporating § 3031(f)(1)’s end-of-
term exceptions for Chapter 33, mentions § 3695 only in
subsection (a), establishing the general 36-month dura-
tional entitlement. See 38 U.S.C. § 3312(a) (“Subject to sec-
tion 3695 and except as provided in subsections (b) and (c),”
an eligible veteran “is entitled to” 36 months of educational
assistance.). In fact, whenever the phrase “[s]ubject to sec-
tion 3695” appears in part III of title 38, it is part of a state-
ment of benefits entitlement. See 38 U.S.C. § 3013(a)(1),
(a)(2), (b), (c)(1), (c)(2), (c)(3), (d) (all providing Chapter 30
benefits entitlement calculations);
id. § 3231(a)(1) (“Sub-
ject to the provisions of section 3695 . . . , a participant
shall be entitled to a maximum of 36 monthly benefit
7 When the aggregate cap moved to Chapter 36 in
1968, Chapters 34, 35, and the former Chapter 33 (repealed
but still governing benefits for some veterans) required
such extensions in certain circumstances. See 38 U.S.C.
§ 1611(b) (1964) (Chapter 33); 38 U.S.C. § 1661(b)
(Supp. IV 1964) (Chapter 34); 38 U.S.C. § 1711(b)(2)
(Supp. IV 1964).
Case: 19-2441 Document: 22 Page: 16 Filed: 06/11/2020
16 CARR v. WILKIE
payments . . . .” (emphasis added)) (Chapter 32 Post-Vi-
etnam Era entitlement);
id. § 3312(a) (Chapter 33).
We see no definitive intent that Congress meant for the
§ 3695 aggregate cap to apply beyond the initial entitle-
ment calculation to dictate the benefits termination date
nor has the government directed us to any VA interpreta-
tions of § 3695 that might call for Chevron deference. See
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842–44 (1984) (holding that where a statute
is ambiguous, courts may not substitute their own statu-
tory construction for an agency’s reasonable interpreta-
tion); Heino v. Shinseki,
683 F.3d 1372, 1375–80 (Fed. Cir.
2012) (applying Chevron to uphold VA’s statutory interpre-
tation). Without a clear indication that Congress wished
to impose the harsh consequence of automatic mid-semes-
ter benefits termination for multi-program beneficiaries,
we hold that § 3695’s aggregate cap applies only to the ini-
tial entitlement calculation.
The government briefly defends the Veterans Court’s
decision on its stated reasoning but also urges affirmance
because, it argues, Chapter 33 does not actually authorize
an end-of-term extension for Ms. Carr since she has not ex-
hausted a full 36 months’ worth of Chapter 33 benefits—
having received only 6 months and 19 days of benefits from
her father. In the government’s view, because Ms. Carr’s
benefits period ran into § 3695’s aggregate cap, and not
into § 3312(a)’s 36-month single-program cap, the Chap-
ter 33-specific extension provisions of §§ 3031(f)(1) and
3321(b)(2) “are irrelevant to this case.” Appellee’s Informal
Br. 11–12. We disagree. No matter which section estab-
lished the duration of benefits available for Mr. Carr to
transfer to Ms. Carr in 2009, their entitlement to those
benefits unquestionably stemmed from Chapter 33. Ms.
Carr was thus “eligible for educational assistance under
[Chapter 33]”; her “period of . . . entitlement . . . expire[d]
during a quarter or semester”; so, absent any barriers from
external provisions, her benefits period would have to “be
Case: 19-2441 Document: 22 Page: 17 Filed: 06/11/2020
CARR v. WILKIE 17
extended to the end of such quarter or semester.” 38 U.S.C.
§ 3031(f)(1). Ms. Carr exhausted all of the Chapter 33 ben-
efits available to her. That is all that is required to invoke
Chapter 33’s end-of-term extension provision.
III
As the Carrs recognize, our agreement with them on
the statutory interpretation question does not resolve their
case. The transferred benefits regulation, 38 C.F.R.
§ 21.9635(y) (2015), if valid, still blocks Ms. Carr from re-
ceiving an end-of-term extension of benefits, since she is a
dependent benefit transferee. See
id. (“The ending date of
an award of educational assistance to a dependent who ex-
hausts the entitlement transferred to him or her is the date
he or she exhausts the entitlement.”).
We lack jurisdiction in this appeal to decide the validity
of § 21.9635(y). The Veterans Court explicitly did not ad-
dress the Carrs’ regulatory challenge, see Carr, 31 Vet.
App. at 129 n.1, and it did not rely on § 21.9635(y) to reach
its decision. See 38 U.S.C. § 7292(a) (providing jurisdiction
to review a decision of the Veterans Court “on a rule of law
or of any statute or regulation . . . or any interpretation
thereof . . . that was relied on by the Court in making the
decision” (emphasis added)). And resolving the issue in the
Carrs’ favor would not have changed the outcome of the
Veterans Court’s decision because it found § 3695 barred
all extensions past the 48-month mark. See Cromer v. Ni-
cholson,
455 F.3d 1346, 1348–49 (Fed. Cir. 2006) (stating
that § 7292(a) permits review of Veterans Court decisions
“on a rule of law,” even where that rule of law was not re-
lied on by the Veterans Court, “so long as ‘the decision be-
low regarding a governing rule of law would have been
altered by adopting the position being urged’” (quoting
Morgan v. Principi,
327 F.3d 1357, 1361, 1363 (Fed. Cir.
2003))); see also Guillory v. Shinseki,
669 F.3d 1314, 1318
(Fed. Cir. 2012). Accordingly, we leave it for the Veterans
Case: 19-2441 Document: 22 Page: 18 Filed: 06/11/2020
18 CARR v. WILKIE
Court to decide on remand whether § 21.9635(y) is invalid
due to its disparate treatment of dependents and veterans.
We have considered the parties’ remaining arguments
but find them unpersuasive. Because 38 U.S.C. § 3695(a)’s
aggregate multi-program benefits cap does not preclude
end-of-term extensions of benefits authorized under indi-
vidual benefits programs, we reverse the contrary judg-
ment of the Veterans Court. The case is remanded for
consideration of the remaining challenge to the transferred
benefits regulation.
REVERSED AND REMANDED
