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 Division, 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 Samantha 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 transferred 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, resolved the appeal purely through statutory interpretation 

and did not address the transferred benefits regulation. 

Because we disagree with the Veterans Court’s interpretation of the statutes in question, we reverse and remand for 

consideration of the unaddressed regulatory challenge.

I

Congress provides, through the Department of Veterans Affairs (VA), educational assistance in the form of monetary benefits to veterans under several chapters of 

title 38, part III, of the U.S. Code. Different chapters contain the distinct benefits programs available based on military 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 discussed 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 provisions 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 Assistance 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 Defense 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 chapter 31 of this title in combination with assistance 

under any of the provisions of law cited in subsection (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 Chapters 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 disabilities receiving training and rehabilitation under Chapter 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 subsection (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 benefits 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 educational assistance shall be afforded any eligible veteran under 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 under chapter 31 of this title are necessary to accomplish the purposes of a rehabilitation program (as 

defined in section 3101(5) of this title) in the individual 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 referred 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 calculation error, she initially did not receive payments to 

cover the final days of the Fall 2010 semester and was informed (incorrectly, it turns out) that she had exhausted 

her benefits.

In August 2013, as Ms. Carr was beginning another semester 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 retroactively 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 education benefits in a roundabout way, incorporating preexisting provisions of Chapter 30, known as the Montgomery GI 

Bill. Section 3312(a) provides the general Chapter 33 education 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]ontinuing 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). Section 3321(b)(2), in turn, makes 38 U.S.C. § 3031(f)—permitting end-of-term extensions of benefits for Chapter 30

recipients—applicable to Chapter 33 recipients. As incorporated 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 quarter 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 benefits 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 discontinuance date will be the last day of the quarter or semester 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, relying 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 entitlement 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 August 26, 2013 (the first day of the Fall 2013 semester), Ms. 

Carr had exhausted the 6 months and 19 days of Chapter 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 affirmed the Board’s decision. Carr v. Wilkie, 

31 Vet. App. 128 (2019). The Carrs2 “challenge[d] the validity of 38 C.F.R. § 21.9635(y) and VA’s disparate treatment 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 benefits 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 entitled to 36 months of benefits. (emphasis added)). But it 

perceived an “apparent conflict” between § 3695 and 

§ 3031(f)(1), with the former unequivocally capping benefits at 48 months and the latter extending benefits 

2 Mr. Carr was allowed to intervene in the appeal.

3 The parties’ submissions to the Veterans Court do not appear 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 exception to § 3695. Id. at 133–34. As shown by its placement 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 multichapter 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 title 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 questions in the veteran’s favor, she would have held that benefits continue until the end of the semester in which a dualprogram 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 Veterans Court “on a rule of law or of any statute or regulation . . . 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 “interpret constitutional and statutory provisions, to the extent 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 statutory interpretation question, as it is the only issue we presently have jurisdiction to resolve.

As always, we start with the text of the statutes at issue. 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 endof-term extensions for multi-program beneficiaries. 

Section 3312—which indirectly incorporates 

§ 3031(f)(1) extensions into Chapter 33—provides, as relevant:

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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 chapter 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 entitled 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 Chapter 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 prerogatives, to read § 3695 as operating on the “front end” (so to 

speak) to calculate the number of days of education benefits 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) . . . .” Although § 3695 speaks in terms of “receiv[ing] assistance,”

that does not mean that it dictates the day on which benefits 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 education 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 leaving 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 educational benefits”; he previously completed 41 months and 

11 days of the benefits under Chapter 34; and he “[c]onsequently, . . . 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 quarter 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 exceptions” to the 48-month cap established in § 3695(a). 

Carr, 31 Vet. App. at 133, 135. The statute does not demarcate subsections (b) or (c) as “exceptions.” And both 

subsections simply set different parameters for benefits 

combined with chapters not listed in subsection (a) as subject to the 48-month cap. See 38 U.S.C. § 3695(b) (aggregate 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 scenarios in which subsection (a)’s 48-month cap does not apply 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 subsection (a).

Second, unlike the individual benefits program chapters, 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 provisions. 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 termination timing to the programs that were providing benefits 

in the first place.6

In fact, in its original form, the aggregate multi-program cap currently found in § 3695 did contain an exception 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 receipt of education benefits under Chapter 34 in combination with education and training received under other 

programs, including Chapters 31, 33 (then containing education 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 assistance under this chapter for a period which, when 

combined with education and training received under 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 Program) do not provide end-of-term extensions, while Chapters 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-specific 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 aggregate 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 receive assistance under two or more of the [identified programs, including Chapters 31, 34, 35, and 

the former chapter 33] . . . may not exceed fortyeight months . . . . 

38 U.S.C. § 1791 (Supp. IV 1964). Through subsequent renumbering and amendments, the almost identical language now appears in § 3695(a).

The government argues that by leaving the extensions 

exception in Chapter 34 instead of carrying it into Chapter 36, Congress intended to allow the VA to use end-ofterm 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 expression of intent. The separation of the multi-program

maximum provision from the end-of-term extension provision during the 1968 transplant paints a murky picture of 

congressional intent. While it could support the government’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 provisions7 and therefore deemed it unnecessary 

to repeat them—especially in a section also governing programs 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 extensions 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 entitlement 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-ofterm exceptions for Chapter 33, mentions § 3695 only in 

subsection (a), establishing the general 36-month durational entitlement. See 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.). In fact, whenever the phrase “[s]ubject to section 3695” appears in part III of title 38, it is part of a statement 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) (“Subject 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).

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16 CARR v. WILKIE

payments . . . .” (emphasis added)) (Chapter 32 Post-Vietnam 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 entitlement calculation to dictate the benefits termination date 

nor has the government directed us to any VA interpretations 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 statutory construction for an agency’s reasonable interpretation); Heino v. Shinseki, 683 F.3d 1372, 1375–80 (Fed. Cir. 

2012) (applying Chevron to uphold VA’s statutory interpretation). Without a clear indication that Congress wished 

to impose the harsh consequence of automatic mid-semester benefits termination for multi-program beneficiaries, 

we hold that § 3695’s aggregate cap applies only to the initial 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 exhausted 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 Chapter 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 established 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: 16 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 benefits 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 receiving 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 exhausts 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 address 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. Nicholson, 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 relied on by the Veterans Court, “so long as ‘the decision below 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 

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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 individual benefits programs, we reverse the contrary judgment of the Veterans Court. The case is remanded for 

consideration of the remaining challenge to the transferred 

benefits regulation.

REVERSED AND REMANDED

Case: 19-2441 Document: 22 Page: 18 Filed: 06/11/2020