Rebecca M. Pereida v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
REBECCA M. PEREIDA,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-2018
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-6676, Judge William S. Green-
berg.
______________________
Decided: April 14, 2025
______________________
REBECCA P EREIDA , San Antonio, TX, pro se.
BRITTNEY M. WELCH , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON , ERIC P. BRUSKIN, P ATRICIA M.
MCCARTHY ; CARLING K AY BENNETT , D EREK SCADDEN, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________
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PEREIDA v. COLLINS 2
Before T ARANTO, CHEN, and HUGHES , Circuit Judges.
T ARANTO, Circuit Judge.
Rebecca M. Pereida’s biological father was a Vietnam
veteran; her biological mother is not. In 2019, Ms. Pereida,
citing her father’s status as a Vietnam veteran, applied to
the U.S. Department of Veterans Affairs (VA) for benefits
based on alleged disabilities of her own, made available by
law to certain children of Vietnam veterans. VA’s relevant
regional office denied the claim, and the Board of Veterans’
Appeals affirmed the denial. Secretary Supplemental Ap-
pendix (S. Appx.) 12–16. Upon Ms. Pereida’s appeal of the
Board’s decision, the Court of Appeals for Veterans Claims
(Veterans Court) also affirmed, determining in relevant
part that Ms. Pereida was not entitled to benefits based on
birth defects under 38 U.S.C. §§ 1811–1816—specifically,
under § 1815—because those provisions expressly apply
only to an “eligible child,” defined as a child of “a woman
Vietnam veteran,” § 1811(1)(A). S. Appx. 1–6 (Decision);
S. Appx. 7. In so holding, the Veterans Court acknowl-
edged that Ms. Pereida asserted that the provisions imper-
missibly discriminate on the basis of sex, but it affirmed
the Board’s denial of the benefits claim simply because “the
law is clear as to which claimants are entitled to benefits”
under the statute. Decision, at 6.
Ms. Pereida appeals, raising the discrimination issue
expressly as a constitutional challenge to the statutory sex-
based limit. The government does not deny the evident fact
that Ms. Pereida’s sex-discrimination challenge in the Vet-
erans Court was a constitutional challenge. But the Veter-
ans Court provided no explanation for its rejection of the
constitutional challenge, whether forfeiture or lack of Vet-
erans Court authority or insufficient development or lack
of merit or any other reason. We vacate and remand for
the Veterans Court to address the issue.
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PEREIDA v. COLLINS 3
I
Ms. Pereida’s father, now-deceased Jose J. Pereida,
served on active duty in the U.S. Marine Corps from Au-
gust 1958 to August 1962 and from September 1962 to Au-
gust 1968, with service in Vietnam. S. Appx. 4; S. Appx.
13. Ms. Pereida’s mother, Mary Pereida, did not serve in
the military in Vietnam. S. Appx. 50; S. Appx. 68. In Oc-
tober 2019, Ms. Pereida filed an application for benefits as
a child with disabilities born of a Vietnam veteran (her fa-
ther), listing the conditions of spinocerebellar ataxia, dys-
tonia, migraine headaches, fibromyalgia, type II diabetes
mellitus, panic disorder with agoraphobia, degenerative
joint disease of the lower back, and spinonsitia. S. Appx.
68–69.
On March 31, 2020, a VA regional office denied the
claim, determining that Ms. Pereida did not qualify for
benefits under either of the two relevant statutory bases
for benefits for a child with disabilities born of a Vietnam
veteran: (1) Ms. Pereida was not entitled to benefits for a
child born with spina bifida to a Vietnam-veteran parent
(mother or father) under 38 U.S.C. § 1805, because the rec-
ord did not show that she had such a diagnosis; and (2) Ms.
Pereida was not entitled to benefits for a child born with
certain non-spina-bifida birth defects to a Vietnam-veteran
mother under 38 U.S.C. § 1815, because the record did not
show that Ms. Pereida’s mother had served in Vietnam.
S. Appx. 59–66; see also 38 U.S.C. § 1811 (defining an “eli-
gible child” for benefits under § 1815 as an individual who
is the child of a “woman Vietnam veteran” and who was
born with “one or more covered birth defects” identified in
§ 1812); 38 C.F.R. § 3.814–815.
In April 2020, Ms. Pereida appealed the denial to the
Board and requested a hearing. S. Appx. 58. In March
2022, a Veterans Law Judge held the requested hearing,
during which Ms. Pereida stated that she had not been di-
agnosed with spina bifida and that her mother is not a Vi-
etnam veteran, which her mother confirmed. S. Appx. 46,
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PEREIDA v. COLLINS 4
49–50. Accordingly, on July 27, 2022, the Board agreed
with the regional office and denied Ms. Pereida’s claim.
S. Appx. 12–16.
Ms. Pereida appealed to the Veterans Court, contend-
ing that the provision of benefits to the children of female—
but not male—Vietnam veterans under 38 U.S.C. §§ 1811–
1816 constitutes discrimination on the basis of sex.
S. Appx. 36–45. Ms. Pereida did not challenge the Board’s
findings that she had no diagnosis of spina bifida and that
her mother is not a Vietnam veteran. S. Appx. 36–45.
On February 29, 2024, the Veterans Court affirmed the
decision of the Board. Decision, at 6. It discerned no clear
error in the Board’s determinations that Ms. Pereida was
not entitled to benefits under 38 U.S.C. §§ 1805 or 1815 be-
cause she did not have a diagnosis of spina bifida and her
mother is not a Vietnam veteran. Id. at 5–6. The Veterans
Court acknowledged that Ms. Pereida “argues that . . . 38
U.S.C. § 1815 is discriminatory because it only considers
children of women Vietnam veterans.” Id. at 6 (citing Ms.
Pereida’s entire brief, S. Appx. 36–45). Without further
discussion, the Veterans Court stated that it was “sympa-
thetic” to Ms. Pereida’s situation but “the law is clear as to
which claimants are entitled to benefits under sec-
tions 1805 and 1815,” and “[a]ccordingly, the Court is left
with no choice but to affirm the Board’s denial of benefits.”
Id. In the Veterans Court, Ms. Pereida was acting pro se.
Ms. Pereida moved for reconsideration. The Veterans
Court rejected the motion and entered judgment on March
22, 2024. S. Appx. 7. Ms. Pereida timely appealed to this
court, where she is acting pro se. Our jurisdiction is gov-
erned by 38 U.S.C. § 7292.
II
Ms. Pereida presents one argument: that the Veterans
Court erred in rejecting her contention that the sex-based
distinction in the statute at issue (between father and
mother) is unconstitutional. It is clear, and both parties
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PEREIDA v. COLLINS 5
before us accept, that the non-spina-bifida statutory bene-
fits provision at issue, 38 U.S.C. § 1815, is limited to ex-
clude Ms. Pereida because it was her father, not mother,
who served in Vietnam. It is clear, and not denied by the
government here, that she challenged the statutory dis-
tinction before the Veterans Court and the challenge was
in fact an argument for unconstitutionality (even if she did
not mention the Constitution expressly). It is also clear
that the Veterans Court, which acknowledged that her en-
tire brief before that court was an argument that the stat-
utory distinction impermissibly discriminated on the basis
of sex, necessarily rejected the contention as a basis for do-
ing anything but affirming the Board’s denial of benefits.
Decision, at 6.
This contention is a legal challenge to a statute (and its
relevantly identical implementing regulation), and the Vet-
erans Court necessarily rejected it as a ground for setting
aside the Board’s decision. We therefore have jurisdiction
under 38 U.S.C. § 7292 to review the Veterans Court’s de-
cision in order to address this contention. See Smith v. Col-
lins, 130 F.4th 1337, 1343–44 (Fed. Cir. 2025) (citing
cases). This jurisdiction includes authority “to determine
whether [the] Veterans Court decision may have rested on
an incorrect rule of law.” Martin v. McDonald, 761 F.3d
1366, 1369 (Fed. Cir. 2014) (citing Colantonio v. Shinseki,
606 F.3d 1378 (Fed. Cir. 2010)); see Acree v. O’Rourke, 891
F.3d 1009, 1015 (Fed. Cir. 2018) (same). Where the deci-
sion may have rested on a legal error, we may vacate the
decision and remand for further proceedings on the issue.
See Acree, 891 F.3d at 1015; Colantonio, 606 F.3d at 1382.
Here, the Veterans Court’s decision may well rest on
legal error. Because of how little the Veterans Court said
about the sex-discrimination challenge, we cannot tell why
the Veterans Court rejected the challenge. And we think
that it is at least advisable, perhaps even necessary given
our limited jurisdiction, for the Veterans Court to under-
take in the first instance the further consideration needed
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PEREIDA v. COLLINS 6
for a proper decision of whether the constitutional conten-
tion should be rejected and, if so, why.
The government states that Ms. Pereida forfeited her
argument by not presenting it to the Board. Secretary In-
formal Br. at 9–10 (citing Ledford v. West, 136 F.3d 776,
779 (Fed. Cir. 1998)). But the Veterans Court did not ar-
ticulate such a ground, and the cited sentence from Ledford
itself indicates that the relied-on doctrine of administrative
exhaustion is “not jurisdictional.” 136 F.3d at 780.
Whether there is a forfeiture for non-exhaustion and
whether, if so, it should be excused are matters for the Vet-
erans Court to address. See also Bowling v. McDonough,
38 F.4th 1051, 1058–59 (Fed. Cir. 2022) (discussing practi-
cal, case-specific considerations).
The government states that, to the extent that Ms.
Pereida made a “facial constitutional challenge to sec-
tion 1815 (as distinguished from an as-applied challenge),”
the Veterans Court lacked authority under 38 U.S.C.
§ 7261 to rule on the challenge. Secretary Informal Br. at
10–11 (citing Taylor v. McDonough, 71 F.4th 909, 942 (Fed.
Cir. 2023) (en banc) (plurality portion of opinion)); see Tay-
lor, 71 F.4th at 942–43. The government did not make such
an assertion to the Veterans Court in its brief to that court.
See Brief of the Appellee Secretary of Veterans Affairs at
9–10, Pereida v. McDonough, No. 22-6676 (Vet. App. Oct.
2, 2023) (attached to Ms. Pereida’s Reply Brief in this court,
ECF No. 47). And the Veterans Court did not discuss the
issue now raised by the government or otherwise discuss
whether it would lack authority to grant relief based on Ms.
Pereida’s challenge if it found the challenge meritorious.
The government states that Ms. Pereida “did not make
a fully developed constitutional challenge to section 1815
before the Veterans Court.” Secretary Informal Br. at 10.
That is true, but the Veterans Court did not rely on that
fact as a ground for its decision. Nor did it decide that a
standard of full development should apply to a pro se filer
like Ms. Pereida. Compare De Perez v. Derwinski, 2 Vet.
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PEREIDA v. COLLINS 7
App. 85, 86 (1992) (noting liberal-construction principle ap-
plicable to pro se appellants), with Locklear v. Nicholson,
20 Vet. App. 410, 416 & n.4 (2006) (declining to consider an
underdeveloped argument but considering it “of great sig-
nificance” that petitioner was “represented by counsel in
this case”). The Veterans Court also did not say that such
a standard would justify rejection of the challenge without
even exploring possibilities (e.g., appointment of counsel or
an amicus) for fuller development of legal arguments.
The government states that “[i]t is unclear . . . why [the
statutes] would not withstand rational basis review.” Sec-
retary Informal Br. at 10 (citing Talon v. Brown, 999 F.2d
514, 517 (Fed. Cir. 1993) (discussing United States Rail-
road Retirement Board v. Fritz, 449 U.S. 166, 176 (1980))).
The Veterans Court did not address what the applicable
standard of review would be for Ms. Pereida’s challenge.
Specifically, it did not discuss the many authorities apply-
ing a heightened standard of review to constitutional chal-
lenges to sex-differentiating classifications. See, e.g.,
Sessions v. Morales-Santana, 582 U.S. 47, 57–59 (2017);
Tuan Anh Nguyen v. Immigration & Naturalization Ser-
vice, 533 U.S. 53, 60–61 (2001).
Nor did the Veterans Court conduct an analysis of the
challenged statutory classification under any standard. In
particular, it did not discuss the background of 38 U.S.C.
§§ 1811–1816, which became law through enactment of the
Veterans Benefits and Health Care Improvement Act of
2000, Pub. L. No. 106-419, § 401, 114 Stat. 1822, 1857–59
(2000). The Senate Committee on Veterans’ Affairs, in rec-
ommending adoption of the measures, relied on the results
of a then-recent study that identified “a statistically signif-
icant increase in the prevalence of birth defects . . . and se-
vere birth defects” in the children of women Vietnam
veterans as compared to the children of women who served
elsewhere in the Vietnam era. S. Rep. No. 106-397, at 32
(2000) (discussing VA Environmental Epidemiology Ser-
vice’s ‘‘Women Vietnam Veterans Reproductive Outcomes
Health Study”). That study was undertaken pursuant to a
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PEREIDA v. COLLINS 8
1986 congressional directive. See Consolidated Omnibus
Budget Reconciliation Act of 1985, Pub. L. No. 99-272,
§ 19031, 100 Stat. 82, 385–86 (1986); H.R. Rep. No. 99-337,
pt. 1, at 40–41 (1985). A portion of the study, published in
the medical literature, states several reasons for focusing
on reproductive outcomes for female veterans, including
that previous studies failed to identify an association be-
tween service in Vietnam by male veterans and most birth
defects in their children. Han K. Kang et al., Pregnancy
Outcomes Among U.S. Women Vietnam Veterans, 38 AM . J.
I NDUS . MED. 447, 447–48 (2000); see Monetary Allowances
for Certain Children of Vietnam Veterans; Identification of
Covered Birth Defects, 67 Fed. Reg. 200, 200 (Jan. 2, 2002)
(to be codified at 38 C.F.R. pt. 3) (discussing the publication
of the VA study). The House Committee, in recommending
the bill that ordered that study, observed that female Vi-
etnam veterans had not been included in other studies that
were already being conducted involving male Vietnam vet-
erans. H.R. Rep. No. 99-337, pt. 1, at 40–41. In noting the
foregoing aspects of the statutory background, we do not
suggest what their ultimate role should be in a proper pre-
sent-day analysis of the statutory provision at issue.
For the above reasons, we conclude that the case
should be remanded to the Veterans Court for further pro-
ceedings—in the Veterans Court or, if necessary, at the
Board—on Ms. Pereida’s constitutional challenge.
III
The decision of the Veterans Court is vacated, and the
case is remanded to the Veterans Court for further proceed-
ings consistent with this opinion.
The parties shall bear their own costs.
VACATED AND REMANDED
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