Case: 19-1667   Document: 45     Page: 1   Filed: 08/21/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                SALLY A. BURKHART,
                  Claimant-Appellant

                            v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                       2019-1667
                 ______________________

      Appeal from the United States Court of Appeals for
 Veterans Claims in No. 16-1334, Chief Judge Margaret C.
 Bartley, Judge William S. Greenberg, Judge Michael P. Al-
 len.
                  ______________________

                Decided: August 21, 2020
                 ______________________

     SEAN S. TWOMEY, Gibson, Dunn & Crutcher LLP, Los
 Angeles, CA, argued for claimant-appellant. Also repre-
 sented by ANDREW T. BROWN.

     MOLLIE LENORE FINNAN, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, argued for respondent-appellee.
 Also represented by ETHAN P. DAVIS, MARTIN F. HOCKEY,
 JR., ROBERT EDWARD KIRSCHMAN, JR.; BRANDON A. JONAS,
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 2                                         BURKHART   v. WILKIE



 Y. KEN LEE, Office of General Counsel, United States De-
 partment of Veterans Affairs, Washington, DC.
                 ______________________

     Before DYK, TARANTO, and HUGHES, Circuit Judges.
 HUGHES, Circuit Judge.
     Sally Burkhart, the widow of a United States Army vet-
 eran, appeals the decision of the Court of Appeals for Vet-
 erans Claims denying her eligibility for home loan
 guaranty benefits from the Department of Veterans Affairs
 under title 38, chapter 37. We conclude that, as the sur-
 viving spouse of a veteran without a service-connected dis-
 ability, Ms. Burkhart is not eligible for home loan guaranty
 benefits under any of the statutes she relies upon. And, the
 Veterans Court correctly determined that it lacked the
 power to grant her equitable relief. We therefore affirm the
 decision of the Veterans Court.
                               I
      Ms. Burkhart is the widow of U.S. Army veteran David
 Burkhart, who served honorably from August 1952 to July
 1954 in the Korean War and was awarded two Bronze
 Stars. He had no service-connected disabilities during his
 life. Mr. Burkhart’s health declined in the late 1990s, and
 he was admitted to a VA inpatient nursing facility. He died
 soon after, while still in VA care.
     Ms. Burkhart then filed a claim for dependency and in-
 demnity compensation (DIC) benefits under 38 U.S.C.
 § 1151 (chapter 11). Section 1151 provides for compensa-
 tion related to the death or injury of a veteran in certain
 circumstances while the veteran was under VA care.
     Compensation under this chapter [11] and depend-
     ency and indemnity compensation under chap-
     ter 13 of this title shall be awarded for a qualifying
     additional disability or a qualifying death of a
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 BURKHART   v. WILKIE                                        3



     veteran in the same manner as if such additional
     disability or death were service-connected.
 38 U.S.C. § 1151(a) (2012). For example, an award is made
 when the disability or death was caused by “carelessness,
 negligence, lack of proper skill, error in judgment, or simi-
 lar instance of fault” in the VA care or by “an event not
 reasonably foreseeable.” Id. § 1151(a)(1). Having deter-
 mined that Mr. Burkhart’s “death [while in VA care] was
 due to an event not reasonably foreseeable,” VA granted
 Ms. Burkhart’s request for DIC benefits. Burkhart v.
 Wilkie, 30 Vet. App. 414, 416 (2019) (alteration in original);
 see 38 U.S.C. § 1151(a)(1)(B). But, as the Veterans Court
 later made clear, “[t]here [was] no indication that the cause
 of [Mr. Burkhart’s] death was related to a service-con-
 nected disability or that [Ms. Burkhart] claimed service
 connection in connection with [Mr. Burkhart’s] death.”
 Burkhart, 30 Vet. App. at 416.
      In 2007, Ms. Burkhart sought a certificate of eligibility
 (COE) for home loan guaranty benefits available under ti-
 tle 38, chapter 37 of the U.S. Code. VA issued her a COE
 that same year, but she never finalized a loan. Six years
 later, in 2013, she requested a new COE for a home loan
 guaranty. This time, VA determined that Ms. Burkhart
 was ineligible for home loan guaranty benefits and that the
 initial 2007 COE had been erroneously issued.
 Ms. Burkhart disputed VA’s decision and eventually ap-
 pealed it to the Board of Veterans’ Appeals.
     The Board found that Mr. Burkhart had no service-con-
 nected disabilities during his lifetime. Nor did he die of a
 service-connected disability. And, because chapter 37
 home loan guaranty benefits are available only to, as rele-
 vant here, “the surviving spouse of any veteran . . . who
 died from a service-connected disability,” 38 U.S.C.
 § 3701(b)(2) (2012), and Mr. Burkhart did not otherwise
 meet the criteria in 38 U.S.C. § 3701(b)(6), the Board
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 4                                        BURKHART   v. WILKIE



 confirmed that Ms. Burkhart was indeed ineligible for
 home loan guaranty benefits.
      Ms. Burkhart appealed three legal issues from the
 Board’s decision to the Veterans Court: (1) “whether a vet-
 eran’s surviving spouse who is entitled to [DIC] under
 38 U.S.C. § 1151 is also thereby entitled to ancillary home
 loan guaranty benefits under title 38, chapter 37”;
 (2) “whether 38 U.S.C. § 3721 . . . bars VA from contesting
 a surviving spouse’s eligibility once the Agency has issued
 a COE before a loan is issued”; and (3) “whether the Court
 may use equitable principles to grant these home loan
 guaranty benefits and order VA to guarantee a loan by em-
 ploying equitable estoppel, waiver, laches, or injunctive re-
 lief.” Burkhart, 30 Vet. App. at 415–16.
      The Veterans Court majority affirmed the Board’s de-
 cision that Ms. Burkhart was ineligible for home loan guar-
 anty benefits under the plain language and legislative
 history of § 1151 and § 3701. Id. at 417–21. Judge Green-
 berg dissented on this issue, concluding that Ms. Burkhart
 “was entitled to the home loan guaranty benefits ancillary
 to her section 1151 dependency and indemnity benefits.”
 Id. at 427–29.
     The Veterans Court also held that 38 U.S.C. § 3721—
 the so-called incontestability provision—applies only to
 “the relationship between the Government and lending in-
 stitutions such as banks, not the Government and COE re-
 cipients, and as to the documents guaranteeing the loan,
 not a COE.” Id. at 421. Section 3721 states:
     Any evidence of guaranty or insurance issued by
     the Secretary shall be conclusive evidence of the el-
     igibility of the loan for guaranty or insurance under
     the provisions of this chapter and of the amount of
     such guaranty or insurance. Nothing in this sec-
     tion shall preclude the Secretary from establishing,
     as against the original lender, defenses based on
     fraud or material misrepresentation.              The
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 BURKHART   v. WILKIE                                        5



     Secretary shall not, by reason of anything con-
     tained in this section, be barred from establishing,
     by regulations in force at the date of such issuance
     or disbursement, whichever is the earlier, partial
     defenses to the amount payable on the guaranty or
     insurance.
 38 U.S.C. § 3721. The Veterans Court reasoned that,
 first, § 3721 refers only to the Secretary and lenders, not
 individual beneficiaries like Ms. Burkhart; second, § 3721
 encompasses “[a]ny evidence of guaranty,” which, read in
 light of other sections of chapter 37, refers to the stage of
 the loan process where a loan has been procured, not an
 early stage like obtaining a COE; and, third, the legislative
 history of § 3721 illustrates Congress’s desire to incentivize
 a secondary market in VA guaranteed loans. Burkhart,
 30 Vet. App. at 421–25.
      Finally, the Veterans Court denied Ms. Burkhart’s re-
 quests for equitable relief based on injunctive relief, equi-
 table estoppel, laches, and waiver. Id. at 425. Broadly, the
 Veterans Court concluded that to grant Ms. Burkhart relief
 “based solely on equity would expand the scope of [its] ju-
 risdiction.” Id. at 426. The court also explained that
 Ms. Burkhart would have had to prevail on the merits be-
 fore the court could grant an injunction. Id. Second, equi-
 table estoppel has not been applied against the government
 as a matter of common law, and where it is available, Con-
 gress has created it by statute. See id. at 426–27. Here,
 however, the Veterans Court reasoned that the incontesta-
 bility provision reflects Congress’s intent that only lenders
 receive this privilege of estoppel. Id. The Veterans Court
 also dismissed Ms. Burkhart’s assertions of laches and
 waiver because those two equitable principles are equita-
 ble defenses, not affirmative theories of relief. Id. at 427.
    The Veterans Court entered judgment on January 28,
 2019. Ms. Burkhart timely appealed. We have jurisdiction
 under 38 U.S.C. § 7292.
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 6                                         BURKHART   v. WILKIE



                               II
     We review de novo the Veterans Court’s interpretation
 of statutes. Wanner v. Principi, 370 F.3d 1124, 1128
 (Fed. Cir. 2004); see 38 U.S.C. § 7292(c). On appeal,
 Ms. Burkhart raises the same three legal issues that she
 did before the Veterans Court. We address each in turn.
                               A
      Ms. Burkhart argues that the Veterans Court erred in
 interpreting § 1151(a) and § 3701(b)(2) to exclude widowed
 spouses like her from home loan guaranty benefits under
 chapter 37. She reasons that she should be eligible for a
 home loan guaranty because § 3701(b)(2) defines a veteran
 eligible for chapter 37 benefits as “the surviving spouse of
 any veteran . . . who died from a service-connected disabil-
 ity,” § 3701(b)(2). Though her husband did not die from a
 service-connected disability, Ms. Burkhart argues that this
 definition still includes her because § 1151(a) requires
 treating her husband’s death “as if” it was service-con-
 nected for all purposes.
      The plain language of § 1151(a) contradicts
 Ms. Burkhart’s argument. It expressly provides for com-
 pensation “as if” the disability or death were service-con-
 nected only for the purposes of chapter 11 and chapter 13
 benefits. See § 1151(a) (specifying “[c]ompensation under
 this chapter [11] and [DIC] under chapter 13”). 1 But VA’s
 home loan guaranty program falls under chapter 37. By
 expressly enumerating the chapters to which it applies,
 § 1151 does not redefine a service-connected death or disa-
 bility for all benefits; it merely “provides an exception that


     1   Note that § 1151(c) also provides for treating an
 “additional disability under this section . . . as if it were a
 service-connected disability” for title 38, chapters 21
 and 39. Again, this provision does not include chapter 37
 benefits.
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 BURKHART   v. WILKIE                                         7



 grants compensation for some non-service-connected disa-
 bilities, treating those disabilities for some purposes ‘as if’
 they were service-connected.”           Alleman v. Principi,
 349 F.3d 1368, 1370–71 (Fed. Cir. 2003) (quoting
 § 1151(a)).
      Attempting to sidestep this plain language,
 Ms. Burkhart cites our decision in Kilpatrick v. Principi,
 327 F.3d 1375 (Fed. Cir. 2003), as proof that we have pre-
 viously expanded the benefits available to a § 1151 benefi-
 ciary beyond those provided in chapters 11 and 13. Indeed,
 in Kilpatrick, we concluded that a § 1151 beneficiary was
 entitled to receive special adaptive housing benefits under
 38 U.S.C. § 2101, even though those benefits fall under
 chapter 21, not chapters 11 or 13. The Veterans Court cor-
 rectly distinguished Kilpatrick from the case at hand in
 multiple respects. In particular, the Kilpatrick panel con-
 cluded that the language of § 2101 was not clear and re-
 sorted to legislative history.       Kilpatrick, 327 F.3d
 at 1378–79, 1381–82. That history led the Kilpatrick panel
 to conclude that § 1151 did encompass § 2101 benefits be-
 cause the predecessor to § 1151 originally provided benefits
 for the predecessor to § 2101, although the 1957 recodifica-
 tion of title 38 inadvertently separated the two provisions,
 id. at 1381. The Kilpatrick panel therefore concluded that
 Congress originally intended for § 1151 to encompass the
 special adaptive housing benefits under § 2101 at issue
 there. Id. at 1382–83. 2



     2    Bolstering our conclusion that § 1151 does not ex-
 tend chapter 37 benefits to Ms. Burkhart is that, after Kil-
 patrick, Congress added § 1151(c), which extended the “as
 if” service connection to chapter 21 and chapter 39 benefits.
 Veterans Benefits Improvement Act, Pub. L. No. 108-454,
 § 304, 118 Stat. 3598, 3611 (2004). But Congress made no
 change to § 1151(a), or elsewhere, that would treat chap-
 ter 37 benefits similarly.
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 8                                        BURKHART   v. WILKIE



     But, as the Veterans Court explained in detail in this
 case, § 1151 and the benefits of chapter 37 have no such
 shared lineage. See Burkhart, 30 Vet. App. at 419–20. We
 therefore agree with the Veterans Court that Ms.
 Burkhart’s Kilpatrick-based arguments are unavailing.
                              B
     Ms. Burkhart next argues that under 38 U.S.C.
 § 3721—the incontestability provision—VA cannot now
 dispute the validity of the COE it issued her, albeit errone-
 ously, in 2007. We disagree for two reasons: (1) the incon-
 testability provision applies only to the relationship
 between the lending institution and VA; and (2) the incon-
 testability provision applies only once a loan is issued.
     First, § 3721 makes no reference to a loan beneficiary
 like Ms. Burkhart; it only refers to the Secretary and “the
 original lender.” 38 U.S.C. § 3721. This strongly implies
 that Congress intended § 3721 to govern only the relation-
 ship between the Secretary and lenders. Indeed, as the
 Veterans Court commented, “it would be odd if the provi-
 sion were focused on a beneficiary when that person is
 never mentioned.” Burkhart, 30 Vet. App. at 422.
     That the incontestability provision applies only to the
 relationship between VA and lenders—not beneficiaries—
 is also supported by the lending process described in
 38 U.S.C. § 3702(c). See Food & Drug Admin. v. Brown &
 Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“A
 court must therefore interpret the statute as a symmetrical
 and coherent regulatory scheme and fit, if possible, all
 parts into an harmonious whole.” (internal quotation
 marks and citations omitted)). The first step to receiving a
 loan involves establishing the veteran’s eligibility. 3 “An



     3   As discussed in Section I, supra, the eligible vet-
 eran includes the “the surviving spouse of any veteran . . .
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 BURKHART   v. WILKIE                                        9



 honorable discharge shall be deemed to be a certificate of
 eligibility to apply for a guaranteed loan.” § 3702(c). Al-
 ternatively, the veteran “may apply to the Secretary for a
 certificate of eligibility.” Id. Then, “[u]pon making a loan
 guaranteed or insured under this chapter” the lender noti-
 fies the Secretary of the required details of the loan and the
 Secretary in turn provides the lender “with a loan guaranty
 certificate or other evidence of the guaranty.” Id. It is that
 “loan guaranty certificate or other evidence of the guar-
 anty” that is the focus of § 3721—not the COE obtained
 earlier in the process.
      The lending process described in § 3702(c) also sup-
 ports that § 3721 does not apply in cases such as this one,
 where no loan was ever issued. 4 If a potential beneficiary
 like Ms. Burkhart never receives a loan, there simply is no
 loan guaranty to contest. There is only what chapter 37
 repeatedly refers to as “guaranty entitlement” or “guaranty
 or insurance housing loan entitlement.” See, e.g., 38 U.S.C.
 §§ 3702(b), 3703(a)(1)(B)–(C). This is not the same as a
 guaranty. Compare 38 U.S.C. § 3703(a)(1)(A)(i) (describing
 when a loan is “automatically guaranteed” and for what
 maximum amount), with § 3703(a)(1)(A)(ii) (discussing
 “the maximum amount of guaranty entitlement available to
 the veteran”) (emphasis added). We apply “the usual rule
 that ‘when the legislature uses certain language in one part
 of the statute and different language in another, the court
 assumes different meanings were intended.’” Sosa v. Alva-
 rez-Machain, 542 U.S. 692, 711 n.9 (2004).




 who died from a service-connected disability.” 38 U.S.C.
 § 3701(b)(2).
     4   Because such a case is not before us, we leave for
 another day the question of whether the incontestability
 provision would apply on a different set of facts, such as
 where a lender did in fact issue a loan based only on a COE.
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 10                                       BURKHART   v. WILKIE



     And, as the Veterans Court described, it makes sense
 that a guaranty is not issued until a loan is made because,
 even with a valid COE, a qualified beneficiary is necessary,
 but not sufficient, for a home loan under the VA home loan
 program. “Just because a person is eligible to participate
 in the program does not mean that the program will guar-
 antee any loan he or she wants. The loan must also meet
 separate requirements.” Burkhart, 30 Vet. App. at 423
 (emphasis in original). See 38 U.S.C. § 3703(a)(1). For ex-
 ample, a loan is automatically guaranteed only if it is for
 certain types of property, like property that is “owned and
 occupied by the veteran as a home.” 38 U.S.C. § 3710(a).
     We note that very little case law helpfully addresses
 the incontestability provision. Ms. Burkhart, however, ar-
 gues that the First Circuit’s decision in Mt. Vernon Cooper-
 ative Bank v. Gleason, 367 F.2d 289 (1st Cir. 1966),
 squarely establishes that the incontestability provision re-
 solves her case in her favor. There, the First Circuit ob-
 served that: “[T]he first sentence of section [3721], the
 incontestability provision, concerns only the Administra-
 tion’s certificate that a particular veteran is eligible for a
 guaranty . . . and that he is entitled to a specified maximum
 amount.” Id. at 291–92. Even if Mt. Vernon were binding
 on this court, this quoted language is ambiguous, at best,
 especially since it appears no COE was involved in that
 case at all. See, e.g., id. at 290 (detailing that, after the
 fraudulent beneficiary applied for the loan, “the bank for-
 warded the papers to the [VA] with a request that the [VA]
 issue a loan guaranty certificate” which the VA subse-
 quently issued as a “loan guaranty”). We agree with the
 Veterans Court that Mt. Vernon is only “marginally rele-
 vant” and contains “seemingly contradictory observations,
 none of which are helpful to the inquiry and all of which
 are dicta.” Burkhart, 30 Vet. App. at 424 n.1.
     Read as “an harmonious whole” with the entirety of
 chapter 37, Brown & Williamson Tobacco Corp., 529 U.S.
 at 133, the incontestability provision therefore cannot aid
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 BURKHART   v. WILKIE                                         11



 Ms. Burkhart in her quest for a home loan guaranty. Sec-
 tion 3721 operates (1) as to the loan guaranty between VA
 and the lender and (2) only once a lender has actually is-
 sued a loan.
                                C
     Beyond her two statutory arguments, Ms. Burkhart as-
 serts that the Veterans Court erred in declining to grant
 her requested equitable relief. Again, we disagree.
     Our recent decision in Burris v. Wilkie, 888 F.3d 1352
 (Fed. Cir. 2018), addresses the limited scope of the Veter-
 ans Court’s equitable powers. We reasoned that, through
 38 U.S.C. § 503(b), Congress provided certain equitable
 powers to the Secretary of Veterans Affairs—“including the
 payment of moneys to any person whom the Secretary de-
 termines is equitably entitled.”       Id. at 1358 (citing
 § 503(b)). But it did not provide similar powers to the Vet-
 erans Court, an Article I tribunal whose jurisdiction is lim-
 ited by statute. Id. at 1357. These statutes “make clear
 that the Veterans Court is statutorily permitted to review
 Secretary decisions involving legal and factual questions
 related to statutory benefits”—but not necessarily the “ex-
 tra-statutory relief that [the Burris] Appellants” sought.
 Id. at 1358. And, the fact that § 503(b) is “[t]he only provi-
 sion in title 38 that addresses equitable relief in this con-
 text,” indicates that Congress did not intend for the
 Veterans Court’s jurisdiction to encompass such equitable
 powers. Id.
     Ms. Burkhart attempts to distinguish Burris because
 there the appellants’ equitable requests were monetary,
 whereas a home loan guaranty, she argues, is not—because
 the beneficiary may never default. The Veterans Court cor-
 rectly identified this as a distinction without a difference.
 Burkhart, 30 Vet. App. at 426. A home loan guaranty that
 will not provide a monetary benefit to the lender in the case
 of default is of little use to the beneficiary or the lender. As
 in Burris, where we held that a request for “equitabl[e]
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 12                                          BURKHART   v. WILKIE



 tolling [of] the time limit for the benefit . . . is functionally
 equivalent to one for retroactive [Dependents’ Education
 Assistance] benefits,” 888 F.3d at 1357, a request for enti-
 tlement to a home loan guaranty is also monetary in na-
 ture.
     Ms. Burkhart also claims that Burris does not apply to
 her because she did not “suffer[ a] loss as a consequence of
 reliance upon a determination by [VA] of eligibility or enti-
 tlement to benefits.” 38 U.S.C. § 503(b). So, she says, she
 is not seeking relief under § 503 and Burris does not gov-
 ern. But the fact that Congress made only one express pro-
 vision for the Secretary to grant equitable relief in limited
 circumstances, in the form of § 503, indicates that it did so
 to the exclusion of other exceptions for the Secretary’s eq-
 uitable powers. See Hamdan v. Rumsfeld, 548 U.S. 557,
 578 (2006) (“[A] negative inference may be drawn from the
 exclusion of language from one statutory provision that is
 included in other provisions of the same statute.”).
     In sum, the Veterans Court provided a thorough anal-
 ysis of Burris and correctly determined that neither that
 precedent, nor any statute, would allow the Veterans Court
 to “accept[] the appellant’s invitation to exercise equitable
 power in this context [because it] would inappropriately ex-
 pand [its] jurisdiction.” Burkhart, 30 Vet. App. at 425. Be-
 cause we affirm the Veterans Court decision in this respect,
 we decline to opine on the application of the equitable de-
 fenses Ms. Burkhart asserted below.
                                III
     We have considered Ms. Burkhart’s remaining argu-
 ments and find them unpersuasive. By the plain language
 of § 1151 and § 3702, Ms. Burkhart is ineligible for a VA
 home loan guaranty. Further, the incontestability provi-
 sion does not apply to her. Finally, the Veterans Court cor-
 rectly determined it did not have jurisdiction to grant the
 equitable relief she requested. We therefore affirm the
 judgment of the Veterans Court.
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 BURKHART   v. WILKIE                                  13



                        AFFIRMED
     No costs.
