United States Court of Appeals 

for the Federal Circuit ______________________

DENNIS M. O’BRIEN,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________

2019-1072

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-2651, Judge Coral Wong Pietsch, Judge William S. Greenberg, Judge Amanda L. Meredith.

______________________

Decided: January 31, 2020

______________________

CHRIS ATTIG, Attig Steel, PLLC, Little Rock, AR, argued for claimant-appellant. 

 REBECCA SARAH KRUSER, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. 

Also represented by JOSEPH H. HUNT, CLAUDIA BURKE,

ROBERT EDWARD KIRSCHMAN, JR.; CHRISTOPHER O.

ADELOYE, BRIAN D. GRIFFIN, Office of General Counsel, 

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2 O’BRIEN v. WILKIE

United States Department of Veterans Affairs, Washington, DC. 

 ______________________

Before WALLACH, CLEVENGER, and HUGHES, Circuit 

Judges.

HUGHES, Circuit Judge.

This is a veterans’ benefits case. Mr. Dennis O’Brien 

appeals a decision of the U.S. Court of Appeals for Veterans 

Claims finding him ineligible to receive additional disability compensation as the legal guardian of his 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 serviceconnected disabilities 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 definitions section 

of the Veterans’ Benefits code (title 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 unmarried person who meets certain age restrictions 

“and who is a legitimate child, a legally adopted child, a 

stepchild who is a member of a veteran’s household or was 

a member at the time of the veteran’s death, or an illegitimate child [in certain circumstances].” Id.

In 2012, Mr. O’Brien took legal guardianship of D.B., 

his stepdaughter’s minor son. Mr. O’Brien then requested 

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O’BRIEN v. WILKIE 3

dependency compensation for D.B., explaining that he and 

his late wife were D.B.’s caretakers since D.B.’s mother was 

in a nursing home and his father was absent. The 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 Mr. O’Brien that he 

could reopen his claim with proof of D.B.’s adoption.

J.A. 178.

The Board of Veterans’ Appeals found no entitlement 

to compensation for D.B. for the same reason. A divided 

three-judge panel of the U.S. Court of Appeals for Veterans 

Claims (Veterans Court) affirmed. Noting that the case involved a matter of first impression, the Veterans Court determined that, despite not expressly defining the term 

“dependents,” Congress still unambiguously limited that

term to “spouses, children, and dependent parents” by 

specifying the amount payable for each in § 1115. O’Brien 

v. Wilkie, 30 Vet. App. 21, 26–27 (2018). The court 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 to 

interpret 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.

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4 O’BRIEN v. WILKIE

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 to 

spouses, children, and dependent parents. He urges us to 

interpret 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 requiring him to adopt 

D.B. in order to receive additional benefits—violates his 

Fifth Amendment right to equal protection, by infringing 

his fundamental right of family association, without a compelling governmental interest. However, Mr. O’Brien forfeited this argument by failing to assert a constitutional 

challenge before the Veterans Court. See Singleton v. 

Shinseki, 659 F.3d 1332, 1334 n.2 (Fed. Cir. 2011) (acknowledging “precedent for this court declining to hear arguments, even constitutional arguments, not raised to 

previous 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 (noting that Mr. O’Brien “does not . . . ask the court 

to find either or both Section 101(4)(A) and Section 1115 

unconstitutional,” but rather “asks the court to apply the 

doctrine of constitutional avoidance”).

In any event, we find Mr. O’Brien’s argument without 

legal merit. Congress may, as it did here, make “rational” 

“factual assumptions” to create a “relevant test of probable 

dependency” for the administration of a benefits program, 

even if “such rules inevitably produce seemingly arbitrary 

consequences in some individual cases.” Califano v. Jobst, 

434 U.S. 47, 53–54 (1977).

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O’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 another, 

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 

providing Mr. O’Brien dependency compensation for D.B.

We regret that the Veterans’ Benefits code currently 

precludes support for the families of veterans like Mr. 

O’Brien who do not fit within its constrained familial configurations. However, it is for Congress—not this court—

to remedy such policy concerns.

III

We have considered Mr. O’Brien’s remaining arguments and find them unpersuasive. The judgment of the 

Veterans Court is affirmed.

AFFIRMED

No costs.

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