Case: 19-1072   Document: 44     Page: 1    Filed: 01/31/2020




   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 Pi-
 etsch, Judge William S. Greenberg, Judge Amanda L. Mer-
 edith.
                  ______________________

                Decided: January 31, 2020
                 ______________________

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

     REBECCA SARAH KRUSER, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, 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,
Case: 19-1072    Document: 44     Page: 2    Filed: 01/31/2020




 2                                          O’BRIEN v. WILKIE




 United States Department of Veterans Affairs, Washing-
 ton, 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 disabil-
 ity compensation as the legal guardian of his grandson,
 D.B. Because D.B. does not qualify as Mr. O’Brien’s de-
 pendent under the benefits-granting statute, we affirm.
                              I
      Mr. O’Brien is a Vietnam War veteran whose service-
 connected disabilities make him eligible to receive compen-
 sation both for himself and for certain “dependents.” See
 38 U.S.C. § 1115 (2012) (providing “additional compensa-
 tion 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 in-
 clude 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 illegiti-
 mate 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 Depart-
 ment 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 in-
 volved a matter of first impression, the Veterans Court de-
 termined 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 there-
 fore 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 enti-
 tled 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 ex-
 tent 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 con-
 stitutional avoidance arguments.
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 4                                           O’BRIEN v. WILKIE




 38 U.S.C. § 7292(c)). We review the Veterans Court’s stat-
 utory 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 depend-
 ents 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 com-
 pelling governmental interest. However, Mr. O’Brien for-
 feited 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) (ac-
 knowledging “precedent for this court declining to hear ar-
 guments, even constitutional arguments, not raised to
 previous tribunals”). While he argued the doctrine of con-
 stitutional avoidance, he did not argue that the VA Secre-
 tary’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 lan-
 guage of § 1115 does not permit such an expansive defini-
 tion. Subsections (A) through (D) specify the amount of
 compensation for particular categories of a veteran’s de-
 pendents: 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 depend-
 ency 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 bio-
 logical 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 con-
 figurations. However, it is for Congress—not this court—
 to remedy such policy concerns.
                               III
    We have considered Mr. O’Brien’s remaining argu-
 ments and find them unpersuasive. The judgment of the
 Veterans Court is affirmed.
                          AFFIRMED
     No costs.
