# United States **Court of Appeals**  **for the Federal Circuit**

______________________
DENNIS M. O ’ BRIEN, Claimant

- Appellant

v.

ROBERT WILKIE, SECRE TARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2019

- 1072

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 16

- 2651, Judge Coral Wong Pietsch, Judge William S. Greenberg

, Judge Amanda L. Meredith

.

______________________
Decided: January 31, 2020

__________________ ____
C HRIS A TTIG , Attig Steel, PLLC, Little Rock, AR, argued for claimant

- appellant.

R EBECCA S ARAH K RUSER , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent

- appellee. Also represented by J OSEPH H. H UNT , C LAUDIA B URKE , R OBERT E DWARD K IRSCHMAN , J R

. ; C HRISTOPHER O. A DELOYE , B RIAN D. G RIFFIN , Office of General Counsel, Case: 19-1072 Document: 44 Page: 1 Filed: 01/31/2020O ’ BRIEN v. WILKIE 2

United States Department of Veterans Affairs , Washington, DC

.

______________________
Before W ALLACH , C LEVENGER , and H UGHES , Circuit Judges.

H UGHES , Circuit Judge.

This is a veterans ’ benefits case. Mr. Dennis O’Brien appeals a decision of the U.S. Court of Appeals for Veterans Claims finding him ineligible to recei ve additional disability compensation as the legal guardian of hi s grandson,D.B. Because D.B. does not qualify as Mr. O’Brien’s dependent under the benefits

- granting statute, we affirm.

I

Mr. O’Brien is a Vietnam War veteran whose service

connected disab ilities make him eligible to receive compensation both for himself and for certain “ dependents.” See 38 U.S.C. § 1115 (2012) (providing “additional compensation for dependents”)

. Section 1115 does not define the term “dependents,” but it lists specific monthly allotments for veterans with (A) “a spouse but no child,” (B) “a spouse and one or more children,” (C) “no spouse but one or more children,” and (D) “ a parent dependent upon such veteran for support .” Id. § 1115 (1) (A)

– (D)

. The definition s section of t he Veterans’ Benefits code (t itle 38 ) also does not include a definition of “dependents ,” but it does define the term “child .” See 38 U.S.C. § 101 (4)(A)

. For purposes of title 38 (with some exceptions not relevant here ), a “child” is an unm arried person who meets certain age restrictions

“ and who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran’s household or wasa member at the time of the veteran’s death, or an illegitimate child [in certain circumst ances]. ” Id.
In 2012, Mr. O’Brien took legal guardianship of D.B., his stepdaughter’s minor son. Mr. O’Brien then requested Case: 19-1072 Document: 44 Page: 2 Filed: 01/31/2020O ’ BRIEN v. WILKIE 3

dependency compensation for D.B., explaining that he and his late wife were D.B.’s caretakers since D.B.’s mother was in a nursing home and his father was absent

. The Department of Veterans Affairs (VA) denied compensation for D.B. because he was Mr. O’Brien’s unadopted grandchild and it “only recognizes biological children, stepchildren or adopted children ”; the VA advised M r. O’Brien that he could reopen his claim with proof of D.B.’s adoption. J.A. 178.
The Board of Veterans’ Appeals found no entitlement to compensation for D.B. for the same reason. A divided three

- judge panel of the U.S. Court of Appeals for Veterans Cla ims (Veterans Court) affirmed. Noting that the case involved a matter of first impression, the Veterans Court determined that , despite not expressly defining the term “dependents,” Congress still unambiguously limited th at term to “ spouses, children, and dependent parents ” by specifying the amount payable for each in § 1115

. O’Brien v. Wilkie , 30 Vet. App. 21 , 26

– 27 (2018)

. The court therefore rejected Mr. O’Brien’s argument to apply the ordinary dictionary meaning of the term. As it was undisputed that D.B. did not meet the statutory definition of “child” under § 101 (4)(A), the court found that Mr. O’Brien was not entitled to compensation for D.B. 1

II
“We have exclusive jurisdiction to ‘review and decide any challenge to the validity of any statute or regulation or any interpretation thereof ’ by the Veterans Court ‘and tointerpret constitutional and statutory provisions, to the extent presented and necessary to a decision. ’ ” Sucic v. Wilkie , 921 F.3d 1095, 1098 (Fed. Cir. 2019) (quoting

1 Having found the language of § 1115 unambiguous,the Veterans Court declined to address Mr. O’Brien’s constitutional avoidance arguments. Case: 19-1072 Document: 44 Page: 3 Filed: 01/31/2020O ’ BRIEN v. WILKIE 4

38 U.S.C. § 7292(c) )

. We review the Veterans Court ’ s statutory interpretation de novo. Id.

Mr. O’Brien argues that the Veterans Court erred by interpreting § 1115 to limit dependency compensation t o spouses, children, and dependent parents. He urges us tointerpret the term “dependents” to include “any dependents in a veteran’s family for whom he bears the costs of dependency.” 2 Appellant’s Br. 33 ; Reply Br

. 17

.

2 Mr. O’Brien also argues that the Veterans Court’s interpretation of § 1115

— effectively requ iring him to adopt D.B. in order to receive additional benefits

— violates his Fifth Amendment right to equal protection

, by infringing his fundamental right of family association

, without a compelling governmental interest. However, Mr. O’Brien forfeited t his argument by failing to assert a constitutional challenge before the Veterans Court. See Singleton v. Shinseki , 659 F.3d 1332, 1334 n.2 (Fed. Cir. 2011) (acknowledging “precedent for this court declining to hear arguments, even constitutional arguments , not raised toprevious tribunals”). While he argued the doctrine of constitutional avoidance, he did not argue that the VA Secretary’s denial of compensation, or the statute itself, violated equal protection principles. See, e.g.

, O’Brien , 30 Vet. App. at 29 ( not ing that Mr. O’Brien “does not . . . ask the court to find either or both Section 101(4)(A) and Section 1115 unconstitutional, ” but rather “asks the court to apply the doctrine of constitutional avoidance”)

. In any event, we find M r. O’Brien’s argument without legal merit

. Congress may , as it did here, make “rational” “factual assumptions” to create a “relevant test of probable dependency” for the administration of a benefits program, even if “such rules inevitably produce seemingl y arbitrary consequences in some individual cases

. ” Califano v. Jobst

, 434 U.S. 47, 53

– 54 (1977 )

. Case: 19-1072 Document: 44 Page: 4 Filed: 01/31/2020O ’ BRIEN v. WILKIE 5

We agree with the Veterans Court that the plain language of § 1115 does not permit such an expansive definition. Subsections (A) through (D) specify the amount of compensation for particular categories of a veteran’s dependents : spouses (with or without children), children, and dependent parents. See 38 U.S.C. § 1115(1). Although Mr. O’Brien argues that these categories of dependents are not exclusive, he does not answer the logical next question of what amount should be awarded to a veteran with anothe r, unlisted, type of dependent.
In its current structure, § 1115 only permits dependency compensation for spouses, children, and dependent parents of eligible veterans. D.B. does not fit within any of these limited classes of dependents. Clearly, he is not Mr. O’Brien’s spouse or parent; nor is he Mr. O’Brien’s child, as defined by § 101(4)(A), because he is not Mr. O’Brien’s biological child, step

- child, or legally adopted child. Therefore, the Veterans Court correctly interpreted § 1115 as not provid ing Mr. O’Brien dependency compensation for D.B

. We regret that the Veterans’ Benefits code currently precludes support for the families of veterans like Mr. O’Brien who do not fit within its constrained familial configurations. However, it is for Congress

— not this court

— to remedy such policy concerns.

I II
We have considered Mr. O’Brien’s remaining arguments and find them unpersuasive. The judgment of the Veterans Court is affirmed.

AFFIRMED

No costs. Case: 19-1072 Document: 44 Page: 5 Filed: 01/31/2020