UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-4633

R ICHARD C. B AREFORD , A PPELLANT ,

V

.
D ENIS M C D ONOUGH , S ECRETARY OF V ETERANS A FFAIRS , A PPELLEE

. On Appeal from the Board of Veterans' Appeals
(Argued January 14, 2021 Decided February 28, 2022)
Jay Tymkovich , with whom Stephen B. Kinaird was on the brief, both of Washington, D.C., for the appellant.

Nathan P. Kirschner , with whom William A. Hudson, Jr. , Principal Deputy General Counsel; Mary Ann Flynn , Chief Counsel; and Carolyn F. Washington , Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.
Before BARTLEY, Chief Judge , and PIETSCH and FALVEY, Judges

. BARTLEY, Chief Judge , filed the opinion of the Court. FALVEY, Judge , filed an opinion concurring in part and dissenting in part.
BARTLEY, Chief Judge : Appellant Richard C. Bareford appeals through counsel a July 1, 2019, Board of Veterans' Appeals (Board) d ecision denying entitlement to a Governmentfurnished headstone or marker to memoriali ze veteran Roy H. Anderson, based on the Board's finding that Mr. Bareford was not a proper applicant for that benefit. Record (R.) at 3-6. This appeal is timely, and the Court ha s jurisdiction to review the Boar d decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter wa s referred to a panel of the Court to address Mr. Bareford's contention that VA impermissibly restricts, through regu lation, who is authorized to apply for a
Government-furnished headstone or marker on beha lf of an eligible veteran, in excess of the authority conferred on VA by the en abling statute, 38 U.S.C. § 2306. 1 For the reasons stated

1 When this matter was briefed and argued before the Co urt, VA's definitions of proper applicants for burial and memorial headstones and markers were codified at 38 C.F.R. § 38.600(a)(1) and (2) (2019). As of September 7, 2021, the definitions are codified at 38 C.F.R. § 38.630(c), for burial headstones and markers, and at § 38.631(c), for memorial headstones and markers. References to the regulations herein have been updated as appropriate to reflect the current codification.2 below, the Court holds that ther e is a gap in section 2306 as to who may apply for Governmentfurnished headstones and markers, but that § 38.631( c) impose arbitrary and capricious restrictions on who is eligible to apply for memorial headston es and markers. Accord ingly, the Court will set aside § 38.631(c), vacate the July 2019 Board decision, and remand the matter for additional development, if necessary, and readjudicat ion consistent with this decision.

I. FACTS 2 On May 11, 1933, President Franklin Delano Roosevelt signed Executive Order 6129, directing that 25,000 World War I ve terans be enrolled in a separate part of the Emergency Conservation Work (ECW) program. 3 , 4 Available at http://www.fdrlibrary.marist.edu/_resources/imag es/eo/eo0002.pdf. Under the auspices of the Veterans Work Program, approximately 700 veterans were sent to the Florida Keys to build bridges to complete a highway between Key West and the mainland. Florida Hurricane Disaster: Hearings on H.R. 9486 Before the H. Comm. on World War Veterans' Legislation [hereinafter Hearings ], 74th Cong. 6 (1935) (statement of Rep. J. Hardin Peterson, available at https://babel.hathitrust.org/cgi/ pt?id=mdp.39015049888574&view=page&seq=10; id . at 33 (statement of Rep. J. Mark Wilcox; id . at 50-51 (statement of Julius F. Stone, Jr., Works Progress Admin.); id . at 110 (statement of Conrad Van Hyni ng, Adm'r, Fed. Emergency Relief Admin. (FERA)); 75 War Veterans in Gale Death List , N.Y. T IMES , Sept. 4, 1935, at 4, available at https://timesmachine.nytimes.com/timesm achine/1935/09/04/93481926.html?pageNumber=4. The project was intended to boost tourism a nd revitalize the economy in the Keys. Matthew G. Hyland, The Florida Keys Hurricane House: Post-Disaster New Deal Housing , 91 F LA

. H IST

. Q. 212, 221, available at www.jstor.org/stable/43487496 [h ereinafter Hyland]. The

2 In detailing the factual history of the 1935 hurricane and related events, which the parties do not dispute, the Court takes judicial notice of, and cites to, relevant government documents, contemporaneous news accounts, scholarly publications, and other sources of similar reputation. See Tagupa v. McDonald , 27 Vet.App. 95, 100 (2014) ("[T]he Court may take judicial notice of facts not subject to reasonable dispute if such facts are generally known or are capable of accurate and ready determination by re sort to sources whose accuracy cannot reasonably be questioned.").

3 The ECW program was a precursor to the Civilian Conservation Corps. See J OHN C. P AIGE , T HE C IVILIAN C ONSERVATION C ORPS AND T HE N ATIONAL P ARK S ERVICE , 1933-1942: AN A DMINISTRATIVE H ISTORY , ch. 1 (1995), available at https://www.nps.g ov/parkhistory/online_books/ccc/ccc1b. htm (last accessed Oct. 5, 2021).

4 All additional electronic sources were last accessed on October 5, 2021.3 veterans assigned to the project were housed in three work camps on Lower Matecumba and Windley Keys that were managed by the Federal Emergency Relief Administration. Id

. On August 30, 1935, the Weather Bureau began publishing advisories about a tropical storm strengthening in the Bahamas. Id . at 222. By September 2, 1935, it looked as though the storm might affect the veteran work camps and FERA began to arrange for a rescue train to transport the veterans from the work camps to the mainland. Id . 222-23. However, through a series of misadventures, the train was delayed, a nd the veterans were not evacuated before the
storm arrived. Id . at 223; Willie Drye, The True Story of the Most In tense Hurricane You've Never Heard Of , available at https://www.nationalgeographic.com/history/article/irma-most-intensehurricane-florida-keys-1935-history; Hurricane's Dead Dug Out of Debris , N.Y. T IMES , Sept. 6, 1935, at 1, 8 (quoting a Weather Bur eau official as saying that am ple notice of danger was provided and a FERA administrator as contending that the weather reports did not indicate that evacuation was necessary), available at https://timesmachine.nytimes.com/timesmachine/1935/09/06/issue.html; Storm Inquiry to Centre on Delay of Relief Train , N.Y. T IMES , Sept. 6, 1935, at 11, available at https://timesmachine.nytimes.com/timesm achine/1935/09/06/93484269.html?pageNumber=11;
see also Ernest Hemingway, Who Murdered the Vets? A Fi rst-Hand Report on the Florida
Hurricane , T HE N EW M ASSES , Sept. 17, 1935, at 9 (questioning why the veterans were not evacuated before the storm), available at https://www.unz.com/print/NewMasses-1935sep17- 00009/. When the rescue train finally arrived in the Keys, the passenger cars were blown off the track. Hyland at 224; Ian Shapira, " Deaths Laid to Act of God ": The Devastating 1935 Hurricane that Surprised the Florida Keys , W ASH

. P OST , Sept. 7, 2017, available at https://www.washingtonpost.com/news/retropolis /wp/2017/09/07/deaths-l aid-to-act-of-god-thedevastating-1935-hurricane-that-surp rised-the-florida-keys/. The unnamed hurricane, one of only three Catego ry 5 Atlantic hurricanes to make landfall in the United States in nearly nine decades, seeMaggie Astor , No, Hurricane Irma Won't Be a "Category 6" Storm , N.Y. T IMES , Sept. 6, 2017, at A14, available at https://www.nytimes.com/2017/09/06/us/hurricane -irma-category-six.html, killed over 250 veterans from the work camps, Hearings , 74th Cong. 332 (1935) (statement of Conrad Van Hyning, Admin'r, FERA), available at https://babel.hathitrust.org/cgi/pt?id= mdp.39015049888574&view=page&seq= 338&skin=2021.4 President Roosevelt ordered that th e veterans' bodies be transported "where the next of kin desired and indicated military funerals and burial in Arlington National Cemetery at Washington for
some." Hurricane's Dead Dug Out of Debris , N.Y. T IMES , Sept. 6, 1935, at 8, available at https://timesmachine.nytimes.com/timesmachine/1935/09/06/issue.html; see also 3 Inquiries Start
in Florida Deaths , N.Y. T IMES , Sept. 7, 1935, at 3, available at https://timesmachine.nytimes.com/timesmachine/1935/ 09/07/issue.html (reporting that a Veterans Bureau representative stated that public funeral services, with full military honors, would be held
for the deceased veterans and their bodies burie d where directed by fam ily members). Eighty
veterans whose bodies were recovered in the firs t few days after the hurricane were buried with full military honors on September 7, 1935, in Woodlawn Cemetery, Miami, Florida. Hearings , 74th Cong. 332 (1935) (statement of Conrad Van Hyning, Admin'r, FERA), available at https://babel. hathitrust.o rg/cgi/pt?id=mdp.39015049888574&view=p age&seq=338&skin=2021. But on September 6, 1935, Florida's Governor, David Sholtz, ordered that the remaining bodies be cremated because of public health concerns. See Hearings , 74th Cong. 262-63 (1935) (statement of Dr. J.T. G ooge, Fla. Health Dep't), available at https://babel.hathitrust.org/cgi/pt?i d=mdp.39015049888574&view=page&seq=268&skin=2021; 3 Inquiries Start in Florida Deaths , N.Y. T IMES , Sept. 7, 1935, at 3, available at https://timesmachine.nytimes.com/timesmachine/1935/09/07/issue.html; Cremations Begun in Key Gale Area , N.Y. T IMES , Sept. 8, 1935, at 37, available at https://timesmachine.nytimes.com/timesm achine/1935/09/08/93704680.html?pageNumber=37. At least 168 veterans' bodies were cremated in the Keys. Hearings , 74th Cong. 332 (1935) (statement of Conrad Va n Hyning, Admin'r, FERA), available at https://babel.hathitrust.org/cgi/pt?id= mdp.39015049888574&view=page&seq=338 &skin=2021.
Veteran and civilian dead were cr emated together, and individual re mains could not be separated.
See Hearings , 74th Cong. 386 (1935) (statement of George E. Ijams, Assistant Admin'r, Veterans' Affairs), available at https://babel.hathitrust.org/cgi/pt?i d=mdp.39015049888574&view=page&seq=385&skin=2021. Two years later, the commingled remains were interr ed in an Islamorada, Florida, memorial to all victims of the 1935 hurricane; th e interred veterans are not individually memorialized. See R. at 62; see also U.S. D EP ' T OF THE I NTERIOR , N AT ' L P ARK S ERV ., N AT ' L REGISTER OF H ISTORIC5 P LACES , Florida Keys Memorial , available at https://npgallery.nps.gov/pdf host/docs/nrhp/text/95000238.PDF. Roy H. Anderson was one of the veterans killed in the 1935 hurricane. He served honorably in the U.S. Army fromApril 1918 to March 1919. R. at80. His wife died in 1930 and they had no children. R. at 63. He was assigne d to one of the work camps on Lower Matecumbe Key. Id . His body was located on October 10, 1936, and his cremated remains were commingled
with other veterans and civilians and interred in the Florida Keys Memorial in Islamorada. Id . No
other marker or memorial has been provided on his behalf. Id

. In August 2017, Mr. Bareford requested that VA provide a Government-furnished
headstone or marker to memoria lize Mr. Anderson. R. at 79. Th e application was co-signed by a representative of the South Flor ida National Cemetery in Lake Worth, Florida, the cemetery that agreed to accept delivery of the headstone or marker. Id. In September 2017, the VA National Cemetery Administration (NCA) denied the requ est, explaining that Mr. Bareford was not a recognized applicant under 38 C.F.R. §§ 38.630 and 38.631. R. at 77-78. Mr. Bareford filed his Notice of Disagreement the following month. R. at 56-64. He asserted that §§ 38.630 and 38.631 are inconsistent with their enabling statute, 38 U.S.C. § 2306, because the statute "places no
restrictions whatsoever on who may apply for the benefit." R. at 57. He emphasized that the
veterans whose remains are interred in the memo rial crypt in Islamora da are not individually memorialized, either there or elsewhere. R. at 62.
The NCA issued a Statement of the Case in November 2017, again finding that Mr.
Bareford was not an authorized a pplicant. R. at 52-54. Mr. Bare ford filed his Substantive Appeal
the same month. R. at 18-49. He noted that th e director of Woodlawn Cemetery in Miami had been permitted to apply for grave markers for th e veterans whose bodies were recovered before
Governor Sholtz's cremation orde r and buried in unmarked graves inthat location. R. at 41. He further explained that he had requested that VA place a group memorial at the Islamorada memorial for those interred within, but that hi s request was denied beca use VA indicated that it can only place group memorials in national cemeteries. R. at 41. He stated that he had requested
that the Islamorada Vill age Council approve a veterans memoria lization at the monument, but that
the Council declined to a lter the monument to identify the individual veterans interred within. R. at 44. He reported that he was able to locate family members to request memorials at the South6 Florida National Cemetery for two veterans, which VA approved, but that the other veterans killed
in the 1935 hurricane and interred in the Islamorada memorial remain unmemorialized. R. at 45. In the July 2019 Board decision on appeal, the Board found that it was bound as a matter of law by the applicant limitations outlined in 38 C.F.R. § 38.600(a)(1)-(2 ) (2019) (now 38 C.F.R. §§ 38.630(c) and 38.631(c)). R. at 4-6. To cl arify, though the Board c ited § 38.600(a)(1) (2019), which concerns the definition of an applicant fo r a burial headstone and marker, the Board found: "It is uncontroverted that the appellant is not a family member of the Veteran." R. at 4-5. Thus, the Board made a finding that Mr. Bareford was not a proper applicant for a memorial headstone or marker in accordance with the terms of § 38.600( a)(2) and implicitly denied him eligibility as an applicant under that subsection. See generally 38 U.S.C. § 7104(a); Stern v. McDonough , 34 Vet.App. 51, 59 (2021) (citing Faust v. W ., 13 Vet.App. 342, 353-56 (2000) (discussing when the Board makes a finding in accordance with the te rms of a regulation and how the Board's failure to explicitly cite and discuss that regulation in its analysis is harmless when the "evidence overwhelming shows" that entitlement to the bene fit sought is precluded unde r that regulation)).
Because it found that Mr. Bareford does not m eet the regulatory definition of a proper applicant for a Government-furnished headst one or maker to memorialize Mr. Anderson, see R. at 5, the Board denied the claim, R. at 3. This appeal followed.

II. ANALYSIS Congress has directed that "[ t]he Secretary shall furnis h, when requested," burial headstones or markers for the unmarked graves of eligible individuals or, when the remains are unavailable, "an appropriate memo rial headstone or marker for the purpose of commemorating an eligible individual." 38 U.S.C. § 2306(a), (b). 5 VA has promulgated regul ations restricting who is authorized to request burial and memorial h eadstones and markers. For veterans whose remains are identified and available, VA will provide a burial headstone or marker and applicants must be either a family member; a personal repres entative (as defined in 38 C.F.R. § 3.600); a representative of a congressional ly chartered veterans service organization (VSO); a government employee whose responsibilities in clude providing services to vete rans and their families; anyone legally responsible for the disposit ion of the veteran's remains or related matters; or, in the case of

5 The parties do not dispute that the veteran, Mr. Anderson, was an eligible individual as defined in section 2306.7 veterans whose service ended before April 6, 1917, any individual. 38 C.F.R. § 38.630(c) (2021).
For veterans whose remains are unavailable or uni dentified, VA will provide a memorial headstone or marker, but only family members may apply. 38 C.F.R. § 38.631(c) (2021). A. The Arguments The parties agree that statutory subsecti ons 2306(a) and (b) do not identify who is authorized to request a burial or memorial headstone or marker, but they disagree as to what the absence of explicit identif ication of who may requestthe same means. Mr. Bareford argues that the plain language of the statute reflects Congress's unambiguous intent that anyone may request a burial or memori al headstone or marker on behalf of a deceased veteran; therefore, by imposing limits as to who may make such re quests, §§ 38.630(c) and 38.631(c) conflict with statutory subs ections (a) and (b). Appellant's Brief (Br.) at 15. In other words, he contends that Congress said nothing on th e matter because there is nothing to be said. He asserts that statutory subsect ions (a) and (b) unambiguously provi de that "'[t]he Secretary shall furnish, when requested,' appropriate Government headstones or markers." Id . at 18. He characterizes the statutory language as "mandatory " and therefore argues thatthere is "no gap to be filled by agency regulation." Id . He observes that another portion of the statute, subsection (e), clearly states that certain benefits for burial recept acles are only available to a veteran's survivors, indicating that "Congress knew how to restrict the applicant pool . . . when that was its intent." Id

. at 20. Therefore, because statutory subsections (a) and (b) place no restriction on who may request a Government headstone or marker, he contends that "[n]o reasonable cons truction of the statute permits the Secretary to deny reque sts" for headstones or markers on the basis of the requestor's identity and urges the Court to invalidate VA's atte mpt to limit applicant eligibility as codified in §§ 38.630(c) and 38.631(c). Id . at 22. In the alternative, Mr. Bare ford asserts that §§ 38.630(c) and 38.631(c) are arbitrary and capricious. With respect to § 38.630(c), he asserts that VA ch anged, without explanation, its previous policy "from 1973 to 2009 that anyone with knowledge of the d eceased veteran could apply for headstones and markers." Id . at 23. He contends that th e regulation "con flicts with congressional intent by making it impossible to mark the graves of veterans who lack an identifiable and cooperative family member." Id . at 27. As for § 38.631(c), he asserts that it "is
even more indefensible" because "VA had no cau se to impose dramatically more stringent restrictions upon applicants for memorial headstones and markers than upon applicants for burial8 headstones and markers.'' Id . at 27. He disputes VA's cont ention that the purpose of memorial
headstones and markers is "sol ely to provide the family a place to mourn the dead," id ., arguing that "[n]othing in sectio n 2306 remotely implies" that memorializ ation is solely for the benefit of family, id . at 28. To ensure "the primacy of fam ily wishes," Mr. Bareford suggests that VA promulgate rules governing the priority of applicants. Id . at 30; see Reply Br. at 13. As for Mr. Bareford's statutory interpretation argument, the Secretary responds that "[s]ection 2306 is silent as to who may be an applicant, and theref ore leaves a gap for the Secretary to fill." Secretary's Br. at 6. The Secretary notes that a 1948 congressional act delegated the responsibility and authority for providing Gove rnment-furnished head stones and markers for unmarked graves to the Secretary of the Army, id . at 9, and that a 1958 amendment to that act further specified that the Secret ary of the Army was "authorized to prescribe such rules and regulations with respect to th e submission of applications for all Government headstones and markers" requested under th e provisions of that act, id . at 10 (quoting Act of Aug. 14, 1958, Pub. L. No. 85-644, 75 Stat. 601, 602) (emphasis omitted). The Secretary contends that the language of the 1958 amendment indicates that Congress delega ted to the Army authority "to establish who's a proper applicant." Id . at 12. The Secretary argues that in 1958, when Congress first gave the Secretary of the Army the authority to prescrib e regulations relating to headstones and markers, the congressional "intent was clearly to give the families of d eceased veterans a place to honor
their loved ones." Id . at 18-19. The Secretary further asserts that, when C ongress transferred auth ority over national cemeteries and memorials to VA through the Nati onal Cemeteries Act of 1973, its failure to explicitly identify proper applicants when it had the opportunity to do so implicitly or explicitly delegated responsibility for that decision to VA. Id . Thus, the Secretary asserts, "section 2306's silence as to 'who' may be a proper applicant lefta gap for the Secretary to fill by regulation." Id

. As to Mr. Bareford's regulatory interpretation argument, the Secretary asserts that neither § 38.630(c) nor § 38.631(c) is ar bitrary and capricious. Id . at 12-21. He argues that the regulations "represent[] a reasoned, and reas onable, line-drawing by VA." Id . at 19. The Secretary contends that the regulations cannot be considered arbi trary because "VA considered [Mr. Bareford's] specific comments during the notice and comment period prior to publishing the final version," and that any "particular policy choices in craf ting the regulation [are in] its purview." Id . at 21.9 Therefore, the Secretary argues, the Court shoul d defer to VA's interpretation of section 2306. Id

. at 12-13.
B. Chevron Step One When the Court interprets a statute, it looks to the statute's text and structure, as well as its legislative history. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc ., 467 U.S. 837, 843-46 (1984); Myore v. Nicholson , 489 F.3d 1207, 1211 (Fed. Cir. 2007) (quoting McEntee
v. M.S.P.B ., 404 F.3d 1320, 1328 (Fed. Cir. 2005) (noting that statutory interpretation "'begins with the language of the statute, the plain mean ing of which we derive from its text and its structure'"). This analys is is colloquially known as Chevron step one. When "the statutory language is unambiguous and 'the statutory scheme is coherent and consistent,'" the Court's statutory inquiry ends, Robinson v. Shell Oil Co ., 519 U.S. 337, 340 (1997) (quoting United States v. Ron Pair Enterprises, Inc ., 489 U.S. 235, 240 (1989)), and "the [C]ourt, as well as the agency, must give effect to th e unambiguously expressed intent of Congress,"
Chevron , 467 U.S. at 842-43. In other words, when the statute is unambiguous, the Court need not proceed to step two in the Chevron analysis framework and, instea d, "must enforce [the statute] according to its terms." King v. Burwell , 576 U.S. 473, 486 (2015); see also Food Mktg. Inst. v. Argus Leader Media , 139 S. Ct. 2356, 2364 (2019) (holding that when the first Chevron step "yields a clear answer, judges must stop"). "It is only after finding a statutory ambiguity that courts may consider the possibility that Congress delegated to an agency the power to fill a gap." Buffington v. McDonough , 7 F.4th 1361, 1368 (Fed. Cir. 2021) (O'Malley, J., dissenting) (citing United States v. Home Concrete & Supply,
LLC , 566 U.S. 478, 488 (2012)). "If Congress has explicit ly left a gap for the agency to fill, there is an express delegation of authority to the agencyto elucidate a specific provision of the statute by regulation." Chevron , 467 U.S. at 843-44; see Morton v. Ruiz , 415 U.S. 199, 231 (1974) ("The power of an administrative agency to administ er a congressionally created and funded program necessarily requires the formulation of policy and th e making of rules to fill any gap left, implicitly or explicitly, by Congress."). Thus , when Congress leaves a gap in the statute, Congress delegates authority to the Agency to fill that gap, for example by authorizing the Agency to implement regulations pursuant to a form al administrative procedure called notice-and-comment. See United States v. Mead Corp ., 533 U.S. 218, 229-31 (2001); Chevron , 467 U.S. at 843-44. Under 38 U.S.C. § 501(a), Congress delegated to the Secretary the "a uthority to prescribe al l rules and regulations10 which are necessary or appropriate to carry out the laws administ ered by the Department and are
consistent with those laws." With above framework in mind, the Court mu st first determine whether the statutory language is silent or ambiguous as to the matter at issue. Chevron , 467 U.S. at 842-43. Whether a statute is unambiguous or a gap ex ists for the agency to fill is a question of law that the Court
reviews de novo. See Lane v. Principi , 339 F.3d 1331, 1339 (Fed. Cir. 20 03) ("[I]nterpretation of a statute or regulation is a question of law. . . ."). 1. Guidance for Determining Whether There is a Gap The first question in this case is whether the absence of an explicit indication as to who may request a Government-furnished burial or me morial headstone or marker on behalf of a
veteran reflects either an unamb iguous congressional intent that anyone may make a request or a gap in the statute that Congress de legated to VA the authority to fill . To answer that question, it is constructive to consider why courts have found, with respect to other statutes, that Congress left a gap for the agency to fill and compare those statutes to section 2306. In some cases, Congress used, but did not define , a critical statutory term, thus delegating to the agency the authority to supply a definition. For example, in Cox v. McDonald , this Court held that 38 U.S.C. § 1117 is ambiguous because it directed the Secretary to take certain actions with respect to "the Southwest Asia theater of operations," but neither defined that term nor explicitly directed the Secret ary to provide a definition. 28 Vet.App. 318, 323 (2016). And in
Breniser v. Shinseki , the Court held that 38 U.S.C. § 1114( o) was ambiguous because it uses, but does not define, the terms "condition" and "cond itions"; therefore, Congr ess delegated to the Secretary the authority to provide those defini tions. 25 Vet.App. 64, 72 (2011). Similarly, in
Heino v. Shinseki , the Court held that, because 38 U.S. C. § 1722A(a)(2) does not define the term "cost to the Secretary," it is silent or ambiguous as to how that term should be defined. 24 Vet.App. 367, 373 (2011). In other cases, Congress expressly addressed part, but not all, of a particular process, either explicitly or implicitly delegating to the agency the authority to regulate the remainder of that process. For example, in 38 U.S.C. § 5112(b), Congress specified the effective date for the discontinuance of disability benefits for veterans who are receiving activ e duty pay. But Congress
was silent as to the date benefits should recommen ce, thereby leaving a gap for the agency to fill. Buffington v. Wilkie , 31 Vet.App. 293, 301 (2019), aff'd sub. nom. Bu ffington v. McDonough ,11 7 F.4th 1361 (Fed. Cir. 2021). Similarly, in 28 U.S.C. § 2412(d)(a)(B), Congress explicitly imposed a deadline by which prevaili ng parties must file an Equal A ccess to Justice Act application for attorney fees and expenses. But Congress said nothing about the time allowed for agency response; consequentl y, it left a gap. Coley v. Wilkie , 32 Vet.App. 284, 288 (2020). In 38 U.S.C. § 5904, Congress expressly delegated to the Secretary the authority to specify the manner in which attorneys file fee agreements with VA. Ravin v. Wilkie , 30 Vet.App. 310, 316 (2018), aff'd , 956 F.3d 1346 (Fed. Cir. 2020). In Lynch v. Wilkie , the Court held that 38 U.S.C. § 1313 provides for VA death benefits to be paid to eligible ch ildren, but left a gap because it was "silent as to when
to evaluate whether a claimant is a 'ch ild.'" 30 Vet.App. 296, 302 (2018). And in Jernigan v.
Shinseki , the Court held that Congress' s explicit delegation to the S ecretary of the authority to prescribe claim forms reasonably encompassed the authority to prescribe the claim form submission process, including creating a time limit for filing formal claims. 25 Vet.App. 220, 225- 26 (2012).
What the above cases have in common is th at additional agency guidance was required because the statute included a gap; a statute canno t be applied accurately and consistently when its operative terms are not defi ned or its processes are onl y partially described. 2. Section 2306 Leaves a Gap "[I]n a Chevron step-one analysis, we employ traditiona l tools of statutory construction and examine 'the statute's text, structure, and legi slative history, and apply the relevant canons of interpretation.'" Heino v. Shinseki , 683 F.3d 1372, 1378 (Fed. Cir. 2012) ( quoting Delverde, SrL
v. United States , 202 F.3d 1360, 1363 (Fed. Cir. 2000). In other words, when considering whether section 2306 is ambiguous, the Court cannot consider subsections (a) and (b), in their current form,
in isolation from the rest of the statute or its history. See Chevron , 467 U.S. at 843-46; Myore , 489 F.3d at 1211; Gardner v. Derwinski , 1 Vet.App. at 584, 586 (1991). Subsection 2306(b)(1) provides: "The Secretary shall furnish, when requested, an appropriate memorial headstone or marker fo r the purpose of commem orating an eligible
individual whose remains are unavailable." Subsection (c) discus ses the material out of which headstones and markers may be made when "furnish ed under subsection (a), (b), or (d) of this
section" and references how sucha headstone or marker can be "requested by the person entitled to request such headstone or mark er." Subsection (c) does not exp licitly state who is "the person entitled to request such head stone or marker" furnished unde r subsection (a) or (b).12 Mr. Bareford argues that any re striction on applicant entitlem ent in subsection (c) refers solely to applicants unde r subsection (d), concerning requests for burial headstones or markers for veterans buried in private cemeteries, because subs ection (d) contains an e xplicit restriction that the applicant "certif[y] to the Secretary that the headstone or marker will be placed" on the grave or "as close as possible to the grave"; therefore, he argues, the phrase "p erson entitled to request"
does not relate to or restrict applicants under subsections (a ) and (b). OA at 59:18-1:00:06, Bareford v. McDonough , U.S. Vet. App. No. 19-4633 (ora l argument held January 14, 2021); see also Russello v. United States , 464 U.S. 16, 23 (1983) ("'Where Congress includes particular language in one section of a statut e but omits it in another section of the same Act, it is generally presumed that Congress acts intent ionally and purposely in the disp arate inclusion or exclusion.'") (quoting United States v. Wong Kim Bo , 472 F.2d 720, 722 (5th Cir.1972)). The Secretary argues that the phrase "person enti tled to request" applies to subsections (a), (b), and (d); that this language leaves a gap because, in describi ng some persons as "entitled" to request a headstone or marker, Congress necessari ly indicated that some individuals would be excluded from that entitlement; that the undefined term in this instance is "the person entitled to request such headstone or marker"; and that this gap represents a delegation to the Secretary of the authority to restrict appli cants under subsections (a) and (b). OA at 24:59-25:13. To answer this question of whom the phrase "p ersons entitled to request" refers to, the Court turns to the history of section 2306. The Se cretary emphasizes that when Congress delegated to the Secretary of the Army the authority to prescribe regulations re lating to headstones and markers, the congressional "intent was clearly to gi ve the families of dece ased veterans a place to
honor their loved ones." Sec. Br. at 18-19. But the National Cemeteries Act of 1973 (1973 Act) transferred responsibility for the National CemeterySystem from the Department of the Army to
what was then called the Veterans Administration. Pub. L. No. 93- 43, § 1000, 87 Stat. 75 (June 18, 1973). The 1973 Act added to Title 38 a new section 906, Headstones and Markers, which stated that the VA Administrator "shall furnish, wh en requested," burial and memorial headstones and markers, and set no restrictions as to who was eligible to make such requests. Id . at 80 (setting forth § 906(a) (for burial headstones or markers) and (b) (for memorial headstones or markers). In October 1978, Congress revised section 906 to add subsection (c), specifying that "a headstone or marker furnished under subsection (a ) or (b)" may be fabr icated out of certain enumerated materials when "requested by the person entitled to request such headstone or marker."13 Veterans' Housing Benefits Act of 1978, Pub. L. No. 95-476, 92 Stat. 1497, 1505 (Oct. 18, 1978). If some persons are entitled to request headstone s or markers furnished under subsections (a) and (b), it inevitably follows that some are not; othe rwise, the phrase "entitle d to request" would be rendered superfluous. See Splane v. West , 216 F.3d 1058, 1068-69 (Fed. Ci r. 2000) ("[C]anons of construction . . . require us to gi ve effect to the clear language of a statute and avoid rendering any portions meaningless or superfluous ."). Accordingly, the language of this revision, read in the
context of the statute as a whol e, makes clear that Congress inte nded, when revising the statute in 1978, that some persons are entitled to request Government-furnished h eadstones and markers and

some are not. The statute, today codified at § 2306(c), has been revised such that subsection (c) also applies to an additional subsecti on (d) and reflects the elevation of VA to an executive department. But nothing about these revisions suggests a change from the statutory amendments set forth in 1978: that a request for a Governme nt-furnished headstone or marker under subsection (a) or (b) must be made "by the person entitled to request such headstone or marker." However, Congress has never defined the phrase "per son entitled to request such h eadstone or marker." Because Congress was silent as to who is entitled to requ est headstones or markers, it left a gap for the agency to fill. See Chevron , 467 U.S. at 843-44; see also Buffington , 31 Vet.App. at 301; Cox , 28 Vet.App. at 323. Accordingly, and in light of VA's gap-fill ing regulations implem ented after notice-andcomment, the Court turns nowto step two of the Chevron analysis: whether the Agency's answer for the gap is a reasonable one to which the Court must defer or whether the Agency's gap-filling regulations are arbitrary, cap ricious, or manifestly c ontrary to the statute. See Chevron, 467 U.S.
at 844.
C. Chevron Step Two Once it is determined that the statute in question is ambiguous and leaves a gap for the agency to fill, under step two of Chevron the analysis turns to whether the agency's interpretation of the statute, as reflected in the correspond ing implementing regulations, is permissible. Id.. at 843. Courts will defer to an agency's "reasonable interpretation" of a statute. Id. at 844-45; see also Mayo Found. for Med. Educ. & Research v. United States , 562 U.S. 44, 58 (2011). If an agency's choice of policy "'represents a reas onable accommodation of conflicting policies that were committed to the agency's care by the statut e, [the courts] should notdisturb it unless it14 appears from the statute or its legislative history that the accommodation is not one that Congress
would have sanctioned.'" Chevron , 467 U.S. at 845 (quoting United States v. Shimer , 367 U.S. 374, 382, 383 (1961)). However, the Court will hold unlawful and set aside regulations issued or adopted by the Secretary when they are "arbitrary, capricious, an a buse of discretion or otherwise not in accordance with law"; such regulations receive no Chevron deference. 38 U.S.C. § 7261(a)(3); see Mead Corp. , 533 U.S. at 227; Chevron , 467 U.S. at 844; see also Mayo Found. , 56 U.S. at 53. "'The scope of the Court's review under the 'arb itrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency.'" Evans v. McDonald , 27 Vet.App. 180, 189 (2014) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc

. v. State Farm Mut.
Auto. Ins. Co ., 463 U.S. 29, 30 (1983)), aff'd , 642 F. App'x 982 (Fed. Cir. 2016). But, under this standard, an agency must "articulate a satisfactor y explanation for its acti on including a 'rational
connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43 (quoting Burlington Truck Lines v. United States , 371 U.S. 156, 168 (1962)). Here, the Court must determine whether the Agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important as pect of the problem, offe red an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a diffe rence in view or the product of agency expertise.

Id. And "[t]he reviewing cour t should not attempt itself to make up for such deficiencies; [it] 'may not supply a reasoned basis for th e agency's action that the agen cy itself has not given'." Id. (quoting SEC v. Chenery Corp ., 332 U.S. 194, 196 (1947)). Furthermore, when an agency changes existing policies, the agency mustshow "that there are good reasons for the new policy" and must provide "a reasoned explanation . . . for disregardi ng facts and circumstances that underlay or were engendered by the prior policy." Encino Motorcars, LLC v. Navarro , 579 U.S. 211, 222 (2016) (quoting FCC v. Fox Television Stations, Inc ., 556 U.S. 502, 515-16 (2009)); see also Nat'l Cable
& Telecommunications Ass'n v. Brand X Internet Services , 545 U.S. 967, 981 (2005) (holding that agencies must "adequately explain[] th e reasons for a reversal of policy").
1. § 38.631(c) Is at Issue Mr. Bareford asserts that §§ 38.630(c) and 38. 631(c) are both arbitrary and capricious.
Because the difference between the two is whethe r a veteran's remains are available for burial,15 they cannot both apply to Mr. Bareford's claim. Thus, as a preliminary matter, the Court must clarify whether Mr. Bareford seeks a burial headst one or marker for Mr. Anderson under 38 C.F.R. § 38.630 or a memorial headstone or marker under § 38.631. In his initial August 2017 application, Mr. Bareford was clear that Mr. Anderson's remains were cremated and comingled with others' remains, rather than buried, and that his remains are not
available for burial. R. at 79. In his October 2017 NOD, he asserted that VA's regulation regarding
memorial headstones and markers is arbitrary and capricious, R. at 56, arguing that there is no reason to distinguish between eligible applicants for burial and memorial headstones and markers,

see R. at 59-60. In his November 2017 Substantive Appeal, he challenged VA's denial of entitlement "to a memorial marker because the app licant is not a relative" and asserted that the pertinent regulation is arbitrary and capricious. R. at 18. In his in itial brief, Mr. Bareford contends specifically that it is arbitrar y and capricious to limit applicants for memorial headstones or markers to family members. Appellant's Br. at 27. And at oral argument, he reiterated that he was seeking a memorial marker, which only familie s may request under the current version of § 36.631(c). OA at 58:29-:49. Accordingly, the Court concludes that the i ssue presented is whether 38 C.F.R. § 38.631(c), which limits eligible memorial headstone or marker applicants to family of the veteran, is arbitrary and capricious.
2. VA's Policy Explanations Before 2005, the application process for reque sting a VA-provided headstone or marker was codified at 38 C.F.R. § 1.632, which stated simply that a form was required. In 2005, VA relocated regulations pertaining to the NCA from Part 1 of Title 38 to Part 38. Relocation of National Cemetery Administrati on Regulations, 70 Fed. Reg. 4768-01 (Jan. 31, 2005). As part of that revision, the headstone or marker application process was relocated to 38 C.F.R. § 38.632; the application process remained substantively the same, with submission of a VA form the only requirement for ordering Government burial or memorial headstones or markers. Id . at 4773. In January 2007, VA proposed a substantia l revision to § 38.632 "to update ordering procedures for headstones and markers" and to ad dress requests for emblems of belief. Headstone and Marker Application Process, 72 Fed. Re g. 2480-01 (Jan. 19, 2007). VA noted: "Congress has authorized VA to promulgate all necessary rules and re gulations to ensure that these cemeteries
are maintained as 'national shrines as a tribute to our gallant dead' and that graves are appropriately16 marked." Id. at 2480. In the proposed rule, VA, for th e first time, defined an applicant as "refer[ing] to the next of kin or personal representative of the deceased eligible individual who applies for a Government-furnish ed headstone or marker." Id . at 2483. VA explained why it was revising the process for requesting emblems of belief but did not explai n why it was proposing a new, limiting definition of "applicant" for the pur pose of requesting burial or memorial headstones
or markers. See id

. The corresponding final rule was effective June 1, 2009. In the final rule, "applicant" was
defined as "the decedent's next -of-kin (NOK), a person authori zed in writing by the NOK, or a personal representative authorized in writing by the decedent." 38 C.F.R. § 38.632(b)(1) (2009). In the comments to the final rule, VA stated that "[G]overnment-furnished headstones and markers serve a particular, congressionally mandated purpos e, namely, to commemorate the gallant dead in a manner commensurate with the dignity of thei r sacrifice." Headstone and Marker Application Process, 74 Fed. Reg. 26,092-01, 26,094 (Jun. 1, 2009) (citing 38 U.S.C. § 2403(c) for the proposition that "cemeteries under VA control shall be considered 'shrines as a tribute to our gallant dead'"). But VA did not address its novel limitation on eligible app licants for Governmentfurnished headstones or markers. In 2014, VA "propose[d] to amend its regulati ons defining who may apply for a headstone or marker," explaining that the "i ntended effect of this proposed ru le would be to expand the types of individuals who may request headstones and mark ers on behalf of decedents." Applicants for VA Memorialization Benefits, 79 Fed. Re g. 59,176-01 (Oct. 1, 2014). VA acknowledged "concerns that the existing applicant definition is too restrictive and results in identified veteran gravesites going unmarked." Id. VA explained: Because of the regulatory re striction, VA denied the requests for headstones or markers which has frustrated the efforts of individuals to ensure the unmarked graves of veterans, particularly those from historic eras, are appropriately marked. VA shares the goal of these individuals to ensure appropriate recognition of veterans who served the Un ited States and proposes to revise the definition of applicant to ease the restrictive aspects of the definition and allow more individuals to apply for headstones and markers, incl uding memorial headstones and markers.

Id. at 59,176-77. And, for the first time, VA proposed different e ligibility requirements for applicants for burial headstones and markers than for applicants for memorial headstones and markers. Id . at 59,176-78. As a preliminary matter, VA explained: "T he revised definition of applicant recognizes17 that VA is authorized to provide tw o types of headstones or markers." Id. at 59,177 (citing subsections 2306(a) and (b) to show there ar e two types of headstones and markers). For burial headstones and markers, it proposed that, for veterans whose service ended on or after April 6, 2017, eligible applicants would in clude, in addition to family members, personal representatives, representatives of congressionally chartered vete rans service organizations, and individuals responsible under appl icable laws for the disposition of unclaimed remains or other
interment or memorialization matters. Id . For veterans whose servic e ended before April 6, 1917, VA proposed no restrictions on applicant eligib ility for burial markers or headstones. Id . at 59,177- 78. Regarding these definitions of "applicant," VA explained, among other things:
Use of the revised definition of personal representative would allow for application for headstones and markers not only by fam ily members, but also by individuals who have no familial relationship to the veteran but to whom the responsibility for final disposition of the remains or other related activities have [sic] fallen. For example, a close friend or a fellow veteran who served with the decedent may be called upon to make final arrangements for a veteran with no living family members. We want to make it possi ble for this individual to request memorialization of the veteran.

. . . We chose to use April 6, 1917, because it is the date on which the United States entered World War I. We are aware th at many individuals are interested in researching genealogy, either for themselves or others, or have broad interest in researching military history, including the burial of veterans. We know that many individuals have taken up the task of identifying burial pl aces of veterans to obtain for them a lasting memorial to their serv ice. We applaud the efforts of these individuals and seek to r ecognize those efforts by allowing them to make an application if they identify an unmarked grave of an eligible individual. We believe that if the grave belongs to a veteran who served during World War I or later, it is more likely that a living family member (as defined in propose d paragraph (a)(1)) could be found. To ensure that family wi shes are respected, we believe that an unrelated individual who identifies an unm arked grave of an eligible veteran who served during or after World War I shoul d attempt to identify and contact family rather than making the application for a bur ial headstone or marker directly to VA.

Id. On the other hand, VA proposed that for memori al headstones and markers, it would permit applications from "family members" only, which it characterized as a broader category than "next
of kin." Id . at 59,177 (explaining that for both burial and memorial he adstones and markers, "the phrase 'next of kin,' is too restrictive because it would not allow for extended relatives, such as fifth cousins and great-nieces or great-great-nephe ws, to request a headstone or marker for their18 relatives"). In proposing thes e revisions, VA stated: "Memoria l headstones and markers, under section 2306(b), are distinct from burial headstones and mark ers and are authorized to commemorate an eligible individual whos e remains are unavailable for burial." Id. at 59,178. VA further stated that a memorial site, like a graves ite, provides a physical place for family to gather
and remember their loved one "and of the c ontribution of a veteran to our country." Id . VA then explained: We are proposing to limit the definition of applicant for memorial headstones and markers to family members . . . so that a memorial headstone or marker retains the same symbolism and purpose that a buria l headstone would have. It is a commemoration of an individual, not the service of the individual. The nation honors the service of veterans in many ways; the memorial headstone or marker allows families to honor their loved one individually.

Id . But at oral argument, the Secretary conceded that it is the veteran, not the family member, who is entitled to a headstone or marker, OA at 38:01-:15, and that the statutory purpose in providing headstones and markers includes recogni zing a veteran's service to country, OA at
25:50-29:02. The final rule, effective April 1, 2016, adopted the proposed definitions for applicant, with the addition of permitting burial headstone and marker applications from state and local individuals who serve veterans and their families in an official capacity

. 38 C.F.R. 38.600(a) (2016). When addressing the public's supportive comments for th e proposed expanded definitions of applicant for both burial and memorial headstones and markers, VA noted that its "intent is that the expanded applicant definition will encourage more people to present memoria lization claims." Applicants for VA Memorialization Benefits, 81 Fed. Reg. 10,765-01, 10,766 (Mar. 2, 2016). VA acknowledged: "While it is tr ue that there was no definition of applicant [for both types of headstones or markers] in our regulations [before 2009] , VA's policy was to accept memorialization requests from VSOs, landowners, and anyone with knowledge of the decedent."
Id. at 10,767. VA disagreed with the public's co mments suggesting the elimination of any definition of applicant for both types of headstones and markers, explaining: "[O]ur intent, as much as possible, is to reserve to the family of the de cedent decisions regarding memorialization. This includes the decision not to obtain a government-f urnished headstone or marker—or any marker at all, if that is their decision." Id. at 10,768. And specifically regard ing the definitions of the various applicant classes for burial headstones an d markers, VA stated: "We believe our approach19 strikes an appropriate balance be tween protecting the interests of a decedent's family and ensuring the appropriate memorialization of veterans." Id. at 10,769. VA further acknowledged that commenters ha d objected to the proposed definition of applicants for memorial headstones and markers. Id . at 10,768-70. VA char acterized memorial headstones and markers as serving a purpose "similar to that provided by a burial headstone or marker when remains are available for burial," and stated that, like burial headstones and markers, a memorial headstone or marker "p rovide[s] a family with a physical site to gather to mourn and
remember their loved one." Id . at 10,769. VA then explained: "As such, VA has determined that requests for memorial headstones and markers should be made by family members who are likely
to want to memorialize someone whose life had specific meaning to them." Id

. As the above demonstrates, before April 2016 VA's policy was to define applicants for the two types of headstones and markers the same. But since April 2016, VA's policy has been to define applicants for the two types of headston es and markers differently, with a much more restrictive definition for applicants for memori al headstones and markers as compared to applicants for burial headstones and markers. The Court will now explain why it will not affo rd deference to VA's construction of who is eligible to apply for a memorial headstone or marker under section 2306. See Chevron, 467 U.S.
at 844. 3. § 38.601(c) Is Arbitrary and Capricious VA has failed to articulate a satisfactory e xplanation for its 2016 polic y of restricting the applicant class for memorial headst ones and markers to just family members, to include "a rational
connection between the facts found and the choice made" and "a reasoned explanation . . . for disregarding facts and circumstan ces that underlay or were engende red by the prio r policy"; and, ultimately, VA's policy fails to reconcile conflicting policies and fails to represent a reasonable accommodation of conflicting policies thatCongress would have sanctioned. See Encino
Motorcars , 579 U.S. at 222; Chevron , 467 U.S. at 844-45; Motor Vehicle Mfrs. Ass'n , 463 U.S. at
43. Regarding the facts and circumstance s underlying VA's policies concerning both types of headstones and markers, VA ha s acknowledged that "government-furnished headstones and markers serve a particular, congressionally mandated purpose, namely, to commemorate the gallant dead in a manner commensur ate with the dignity of their sa crifice." Headst one and Marker20 Application Process, 74 Fed. Reg. 26,092- 01, 26,094 (Jun. 1, 2009). And VA characterized memorial headstones and markers as serving a pur pose that is the "same" or "similar" to the purpose of burial headstones and markers. Sp ecifically, VA explained that both types of headstones and markers provide a physical site fo r the family of the decedent to mourn and honor
their loved one. And regarding VA's prior policies concer ning who is eligible to apply for both types of headstones and markers, VA explained that its pol icy before 2009 was to accept memorialization requests from VSOs, landowners, and anyone w ith knowledge of the decedent. And, in promulgating its current policies, VA acknowledge d that its 2009 policy of restricting eligible applicants to next-of-kin contrave nes VA's own stated goal of ensuring that veterans, particularly those from historical eras, are recognized for th eir service to our countr y. In sum, VA's policy before 2016 had always been to define the applic ants for both burial and memorial headstones and markers the same, which makes perfect sense gi ven that Congress intended for headstones and markers to commemorate the gallant dead and their contribution to th e Nation, apparently regardless of whether the decedent's remains were available for burial or not. But in 2016, VA diverged from its prior policy of defining applicants for both types of headstones and markers the same, and it failed to provide a satisfactory explanation for doing so. First, in 2016, VA made the policy decision to significantly broaden the applicant classes
for burial headstones and markers, explaining thatnewly stated purposes underlie VA's new policy, including, among others, ensu ring that veterans with no fa mily members are provided with a headstone or marker pursuant to the vete ran's own wishes as expressed to personal representatives, as well as ensuring that non-fa mily individuals (such as those interested in researching genealogy and military hi story), who wish to ensure lasting memorials to veterans, may apply for VA to provide a burial headstone or marker (with the caveat that the wishes of the family, if any, should be prioritized over the wish es of non-family in the case of veterans who served during World War I and thereafter). 6 But VA failed to make any connection between (a ) its new policy of restricting applicants
for memorial headstones and markers to only family me mbers and (b) the above-noted facts and circumstances raised by VA, albeit raised with respect to veterans whose remains are available for

6 The Court again notes that the subsection concerni ng the definitions of applicant classes for burial headstones and markers is not at issue in this case.21 burial. VA should have provided an explanation, b ecause, for example, the Court is left wondering why veterans with no family members, whose remains are not available for burial, are not afforded the benefit of having their personal representatives implement their wishes after death. For another example, the Court is left wondering why non-familyindividuals who are in terested in genealogy and military history and in ensuring that veterans with no family members who served before or
since World War I are honored for their contribution to our country are precluded from applying to VA to provide such a place of commemoration for such a decedent simply because the
decedent's remains are unavailable for burial. Second, VA failed to provide a rational explanatio n for its connection between (a) its stated purpose that, like burial headston es and markers, a memorial h eadstone or marker provides a family with a physical site to mourn and remember the decedent, and (b) VA's choice that requests
for memorial headstones and markers should be ma de only by family members, who are likely to
want to memorialize someone w hose life had specific meaning to them. VA's stated purpose (a), which applies to both types of headstones and markers , does not logically exclude all other possible purposes (e.g., the additional purposes that VA raised with respect to burial headstones and markers), given the absence of any explicit statement by VA th at all other possible purposes
are excluded for memorial headstones and markers. 7 Because VA's choice of policy (b) does not logically follow the facts and circumstances unde rlying its change of po licy (a), VA failed to provide rational and sound reasoning for its new po licy of restricting app licants for memorial headstones and markers to only family members to th e exclusion of all others . The Court is also left wondering how this restrictive definition sa tisfies VA's stated policy of "strik[ing] an appropriate balance between protecting the inte rests of a decedent's family and ensuring the appropriate memorialization of ve terans." Applicants for VA Memorialization Benefits, 81 Fed. Reg. 10,765-01, 10,769 (Mar. 2, 2016). Third, VA failed to provide rational and sound reasoning for its policy change when it stated that "[t]he revised definition of applican t recognizes that VA is authorized to provide two types of headstones or markers." Applicants for VA Memorialization Benefits, 79 Fed. Reg. 59,176-01, 59,177 (Oct. 1, 2014). Without any further e xplanation by VA, the Court is still left

7 Given that VA did not expressly exclude all other possible purposes, deducing that VA's single stated purpose (providing family a pl ace to mourn and honor the decedent) necessar ily excludes all other possible purposes is a logical fallacy. Specifically, such a deduction implicat es the logical fallacies of "overlooking alternatives" and "false dilemma" (false dichotomy).22 wondering why VA has defined "applicants" for memo rial headstones and mark ers so restrictively compared to its definitions of the applicant clas ses for burial headstones an d markers. Indeed, the two types of headstones and marker s have always been considered different in nature by VA and by Congress, simply because burial headstones and markers are for veterans whose remains are
available for burial whereas memorial headstones and markers are for veterans whose remains are
not available for burial. So how does the distinct ive nature of memorial versus burial headstones and markers connect to VA's choice to diverge from VA's prior policy of defining applicants for both types the same? And how does that choice relate to VA's acknowledgement that the two types of headstones and markers serve the same congressionally mandated purpose? Why has VA changed its prior long-standing policy of defini ng applicants for both types
of headstones and markers the same? We cannot know, because VA failed to provide a reasonable explanation for changing its policy and for adopting a far more restrictive definition of "applicant" for memorial headstones and markers as comp ared to burial headstones and markers. See FCC v. Prometheus Radio Project , 141 S.Ct. 1150, 1158 (2021). The absurd result of the current policy under § 38.631(c)–for which the Court is precluded from supplying its own reasoned basis–is that when no surviving family member is available, the
deceased service member and his or her contribu tions to our country remain unmemorialized, simply because that service member's remains are not available for burial. In light of the above, and given Congress's intent to commemorate the gallant dead in a manner commensurate with the dignity of their sacr ifice (apparently without re gard to whether or not the remains are available for burial), the Court cannot find that VA's attempt to reconcile its current policy with conflicting policies is a reasonable accommodation th at Congress would have sanctioned. Cf. Chevron , 467 U.S. at 845. As a result, the Court holds that § 38.631(c) is arbitrary a nd capricious, and the Court affords no deference to VA's policy decisi on underlying its promul gation of § 38.631(c). See Encino Motorcars, 579 U.S. at 222; Chevron , 467 U.S. at 844-45; Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43. Accordingly, the Court will invalidate § 38.631(c) (2021). Because the Board relied on the invalid regul ation in reaching its July 2019 decision, remand is required. See Tucker v. West , 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where the Board has incorrec tly applied the law). In accordance with Kutscherousky v. West , 12 Vet.App. 369, 372-73 (1999) (per curi am order), Mr. Bareford is free23 to submit additional arguments and evidence on remand, including any additional arguments he made to this Court; the Board must consid er any such evidence or argument submitted. See Kay v. Principi , 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant
to entail a critical examination of the justification for the [Board's] decision," Fletcher v.
Derwinski , 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.

III. CONCLUSION Upon consideration of the foregoing, 38 C.F.R. § 38.631(c) (2021) is SET ASIDE; the July 1, 2019, Board decision is VACATED; and the ma tter is REMANDED for further development, if necessary, and readjudication c onsistent with this decision.

FALVEY, Judge, concurring in par t and dissenting in part : Section 2306 provides that "[t]he Secretary shall furnish, when requested," burial headstone s or markers for the unmarked graves of eligible individuals or, when the re mains are unavailable, "an appropriate memorial headstone or marker for the purpose of commem orating an eligible i ndividual." 38 U.S.C. § 2306(a), (b). VA has promulgate d regulations, 38 C.F.R. §§ 38.630(c) and 38.631(c), establishing, respectively, who may request a burial headstone or memorial marker. I agree with the Court's summation of the facts and the parties' ar guments in Sections I and II.A and its Chevron step one analysis in Section II.B. But I do not join the Court's decision to then invalidate the regulati ons as arbitrary and capricious because it disagrees withVA's decision to create differe nt standards for burial headstone versus memorial marker applicants. Courts apply th e law, not make it. When a statute leaves a gap for an executive agency to fill, we must defer toa reasonable agency action as long as the agency
has considered the relevant issu es and provided a reasoned explana tion. We must not substitute our own policy judgment for the agency's. Here, the Secretary's explanation shows that he made a reasonable choice after weighing the relevant considerations. Yet the Court rejects the Secretary's reasonable distinction between the applicant clas ses for burial headstones and memorial markers. Thus, I respectfully dissent from Sections II.C and III. of the Court's opinion.

I.24 "Statutory interpretation begins with the words of the statute." Mulder v. McDonald , 805 F.3d 1342, 1345 (Fed. Cir. 2015) (citing Barnhart v. Sigmon Coal Co., Inc. , 534 U.S. 438, 450 (2002)). "When, as here, the Court is reviewing 'a n agency's construction of the statute which it administers,' a court must first ask 'whether C ongress has directly spoken to the precise question
at issue.'" Cox v. McDonald , 28 Vet.App. 318, 323 (2016) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842, (1984)). If we determine that Congress has spoken directly to the issue, we mu st adhere to the unambiguous meaning. Cox , 28 Vet.App. at 323. But if the statute is silent or ambiguous on the issue, the que stion then becomes whether the agency's interpretation is based on a pe rmissible construction of the statute. Id. This is known as
Chevron steps one (determining ambiguity) and tw o (determining permissible statutory construction). See Buffington v. Wilkie , 31 Vet.App. 293, 300-02 (2019), aff'd sub. nom. Buffington v. McDonough , 7 F.4th 1361 (Fed. Cir. 2021). Here, the operative statutory sentence pr ovides, "the Secretary shall furnish, when requested , an appropriate headstone or marker." 38 U.S.C. § 2306(a) (e mphasis added). The subject of the sentence is "Secr etary." The main verb or action is "furnish." But the adverbial phrase "when requested" lacks an explicit subject and verb. It is implied that the Secretary must furnish the headstone or marker at the time reque sted. But it is unclear who is making the request and the statute thus leaves ambiguity on this point. This conclusion is bolstered by section 2306(c) , which provides that "[a] headstone or marker furnished under subsection (a), (b), or (d) of this section may be of any material . . . requested by the person entitled to request such he adstone or marker." 38 U.S.C. § 2306(c). Under this provision, Congress specified that some people are "entitled" to request a headstone or marker and, necessarily, some people are not entitled to make a request. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank , 566 U.S. 639, 645 (2012) ("[I]t is a commonplace of statutory construction that the specific gove rns the general."); Jennings v. Rodriguez , 138 S. Ct. 830, 844 (2018) ("The expression of one thing implies th e exclusion of others.").

II. Because the statute is silent about who may request a headstone or marker, the Secretary may issue a regulation filling that gap. VA, as "'an agency that has been granted authority to promulgate regulations necessary to the administration of a program it oversees[,] may fill in gaps25 in the statutory scheme left by Congress,'" and a regulation that does so is valid "'as long as the agency's action is reasonable and consistent in light of the statute and congressional intent'." Sears v. Principi , 349 F.3d 1326, 1329 (Fed. Cir. 2003) (first quoting Contreras v. United States , 215 F.3d 1267, 1274 (Fed. Cir. 2000) and then quoting Disabled Am. Veterans v. Gober , 234 F.3d 682, 691 (Fed. Cir. 2000)); see also Cox , 28 Vet.App. at 323 (citing Chevron , 467 U.S. at 842). The question at hand is whether VA's gap-filling rules were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" so that the Court should hold them invalid
under the Administrative Procedure Act. 5 U.S.C. § 706(2)(A). To pass "arb itrary and capricious" review, an agency decision must be "reasonable and reasonably explained." FCC v. Prometheus Radio Project , 141 S.Ct. 1150, 1158 (2021). In a recent unanimous decision, the Supreme C ourt stated that "arbitrary and capricious" review "is deferential, and a court may not substitute its own policy judgment for that of the agency." Id. A reviewing court instead "simply ensures that the agency has acted within a zone of reasonableness and, in particular , has reasonably considered the relevant issues and reasonably explained the decision." Id. The Supreme Court has also instru cted that arbitrar y and capricious
review is a "'narrow'" standard and that courts should "'uphold [decisions] of less than ideal clarity if the agency's path may be reasonably discerned'." FCC v. Fox Televi sion Stations, Inc. , 556 U.S. 502, 513 (2009) (first quoting Motor Vehicle Mfrs. Assoc. of United States, Inc. v. State Farm Mut.
Auto. Ins. Co. , 463 U.S. 29, 43 (1983); then quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc. , 419 U.S. 281, 289 (1974)). Moreover, a court will not overturn an agency decision unless the agency "has relied on factors which Congress had not intended it to consider, entirely failed to consider an important as pect of the problem, offe red an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a diffe rence in view or the product of agency expertise."
Nat'l Assoc. of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 658 (2007) (quoting Motor Vehicle Mfrs. , 463 U.S. at 43). "Arbitrary and capricious" re view gives significant deferen ce to agency discretion. Much as when we apply the "rational basis" standard when reviewing constituti onal questions, we need not agree with the course the agency has chosen . Indeed, we may have pr eferred any number of alternative paths. Even so, the relevant inquir y is simple: Was the agency's decision reasonable26 and did the agency provide an adequate explan ation that considered the relevant issues?
Prometheus Radio , 141 S.Ct. at 1158.

III. Here, the answer to both parts of the inquiry is yes. VA filled the st atutory gap of who may request a burial headstone or memorial marker by defining "applicant" for eac h type of marker. 38 C.F.R. §§ 38.630(c), 38.631(c). The potential applicant p ool for burial headst ones is larger, including family members as well as several clas ses of persons unrelated to the deceased veteran. § 38.360(c). For memorial markers, on the othe r hand, only family members may apply. § 38.361(c). Although we may desire more people to be able to request me morial markers, the
differentiation between the two a pplicant pools is reasonable. Congress authorized VA to define applicant eligibility, and VA chos e to prioritize the wishes of family members. See Mayo Found. for Med. Educ. and Rsch. v. United States , 562 U.S. 44, 59 (2011) ("Regulation, like le gislation, often requ ires drawing lines."). When promulgating the regulations at issue, VA stated, "[O]ur intent, as much as possibl e, is to reserve to the family of the decedent decisions regarding memorialization." 81 Fed. Reg. 10,678 (March 2, 2016). Although VA restricted memorial marker applications to relative s alone, it allowed unrelated
individuals to make burial head stone requests for veterans whos e service ended before April 6, 1917, 8 and whose families' wishes would thus generally be harder to determine

. 81 Fed. Reg. 10,768. ("[W]e chose to include a date after which we felt it will be more likely that living family members could be located and could provide input into the marking of a grave."). VA explained that it chose to differentiate the family-relati on requirement for memorial markers and burial
headstones because memorial markers are intended not to identify a burial site but to provide family members with a physical site to "mourn and remember their loved one" when remains are
unavailable. Id. at 10,768-69. It reasoned that "requests for memo rial . . . markers should be made by family members who are likely to want to memorialize someone whose life had specific meaning to them." Id. at 10,769. Memorial markers have a distinct, family -centric purpose not necessarily shared by burial head stones, which are placed at the location of the d ecedent's remains

8 April 6, 1917, was the date the United States declared war on Germany and entered World War I. U.S. Entry into World War I , Office of the Historian, Foreign Service Institute, https://history.state.gov/milestones/1914- 1920/wwi (last visite d December 7, 2021).27 rather than the family's chosen place of mourning. See id. Thus, it makes sense for relatives' wishes to be especially prioritized regarding memorial markers in a way th ey are not for burial headstones. VA responded extensively to public comments about §§ 38.360(c) and 38.361(c), including
Mr. Bareford's comments. See id. at 10,765-70. It addre ssed, among others, co mments suggesting broader categories of applicants, that the previous applicant standard should be reinstated, that the applicant definitions should be eliminated, that date restrictions should be eliminated, and that
non-relatives should be allowed to apply for memorial markers. Id. VA's responses repeatedly emphasized the prioritization of family members' wishes in the remembrance of their loved ones, especially regarding memorial markers, and explained why VA differentiated between burial headstone applicants and memorial marker applicants. See id. at 10,765-70. Given VA's comments, it reasonably define d who may be an applicant for burial headstones versus memorial markers and adequa tely explained its r easoning for the differing eligibility. See Prometheus Radio , 141 S.Ct. at 1158. Thus, VA's decision warrants deference under the "arbitrary and capricious " standard and the Court should not invalidate the Secretary's regulations. See id. We may believe that VA should have prioritized considerations other than family members' wishes when it promulgated these regulations. We may believe that, al though VA was correct to prioritize family members' wishes, it should have done so in a different way. That, however, does not change the level of deference we owe to VA. Yet, rather than defer to the Secretary's reasonable regulations, the Court mandates that requests for burial headstones and memorial marker s be treated identically because they serve similar purposes. By emphasizing that "it is the ve teran, not the family member, who is entitled to a headstone or marker," ante at 19, the Court dismisses VA's expl anation that it sought to uniquely prioritize family members' wishes for memorial markers. But the issue here is not who is entitled

to a headstone or marker. The issue is who may request a headstone or marker. The Court implies that, because VA listed multiple policy considerations that informed its definition of the applicant class for burial head stones, the agency could not prioritize family members' wishes in defining the memorial marker applicant class unless it explicitly excluded all other possible considerations. See ante at 20-21. I fail to see how this follows. VA reasonably explained why it regarded family members' wishes as the primary consideration for memorial markers in a way it did not for burial headstones. Wh at's more, our task is not to mandate complete28 consistency in VA's policy choices or ensure th at it specifically account for every plausible consideration. We need only ensure that the ag ency make a reasonable choice after considering
the relevant issues. And it has done so here. Moreover, by striking down the Secretary's regulations as arbitr ary and capricious, the Court effectively requires th at VA provide a burial headst one or memorial marker to anyone , without limitation, and that VA must do so no matte r how many individuals or entities request a
headstone or marker. 9 This is an absurd result not contemplated by the plai n language of the statute.

IV. The Court ably details the tragic deaths of veteran Roy H. Anderson and others and Mr. Bareford's noble and persistent efforts to memoria lize those deaths. Despite these compelling facts, VA's regulations prescribing w ho may apply for burial headstones and memorial markers are not arbitrary and capricious, and the Court should defer to the Secr etary's reasonable and reasonably explained regulations. Thus, I respectfully dissent.

9 There are other statutory considerations and limitations concerning headstones or markers that are not at issue, such as where the individual is buried, who is an eligible deceased i ndividual, and what constitutes unavailable remains of a deceased individual. See § 2306(a), (b).