Julien P. Champagne v. Denis McDonough, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
JULIEN P. CHAMPAGNE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1047
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-1156, Judge Scott Laurer.
______________________
Decided: December 6, 2024
______________________
FALEN M. LAPONZINA, ADVOCATE Nonprofit
Organization, Washington, DC, argued for claimant-
appellant. Also represented by KENNETH M. CARPENTER,
Law Offices of Carpenter Chartered, Topeka, KS.
AMANDA TANTUM, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY,
LOREN MISHA PREHEIM; CHRISTINA LYNN GREGG, Y. KEN
LEE, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
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CHAMPAGNE v. MCDONOUGH 2
______________________
Before CHEN, HUGHES, and STARK, Circuit Judges.
STARK, Circuit Judge.
Julien P. Champagne appeals from the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the Board of Veterans’
Appeals’ (“Board”) denial of an effective date earlier than
July 14, 2003, for service connection for Mr. Champagne’s
cerebellar degenerative disorder (“CDD”). Champagne v.
McDonough, 2022 WL 2663589 (Vet. App. Jul. 11, 2022).
We affirm.
I
Mr. Champagne served honorably on active duty in the
United States Marine Corps from December 1953 to
December 1956. In September 1987, he filed a “Veteran’s
Application for Compensation or Pension,” using VA
Form 21-526, with the United States Department of
Veterans Affairs (“VA”) (“1987 Application”), seeking
benefits relating to his CDD. App’x 21-24.1 A VA regional
office (“RO”) construed the 1987 Application as an
“application for pension benefits,” SApp’x 2, and awarded a
“disability pension” in December 1987, App’x 29.
In August 1999, Mr. Champagne filed a “Statement in
Support of Claim,” requesting that the VA consider a claim
for service connection disability compensation (“service
connection compensation” or just simply “compensation”)
for a malaria condition, as well as any residual illnesses he
“obtained while in military service.” App’x 30. In a July
1 “App’x” refers to the appendix attached to Mr.
Champagne’s opening brief. “SApp’x” refers to the
supplemental appendix attached to the government’s
response brief.
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2002 rating decision, the RO granted Mr. Champagne
service connection compensation for malaria at 0%,
effective November 15, 2001, but did not grant
compensation for any residual illnesses, including CDD. In
July 2003, Mr. Champagne filed a notice of disagreement,
contending that he had contracted malaria during service
and that his CDD was caused by malaria. In April 2004,
the RO confirmed its July 2002 rating decision.
In February 2005, upon finding that Mr. Champagne
had failed to timely appeal its earlier decisions, the RO
construed one of Mr. Champagne’s filings as a new claim
seeking a higher service connection compensation rating
for malaria and also seeking a finding of compensation for
CDD as a residual of or as secondary to malaria. After
multiple proceedings between 2005 and 2013, Mr.
Champagne was granted compensation for CDD at a 100%
rating, effective February 3, 2005. He challenged this
effective date and, in January 2018, the RO granted him
an earlier effective date of July 14, 2003.
The January 2018 rating decision explained that Mr.
Champagne’s 1987 Application was “a claim for pension
benefits” but added that “a claim for pension is also
considered a claim for compensation benefits,” even though
“there was no evidence of record to suggest that [Mr.
Champagne’s] disability was incurred in or caused by
service.” App’x 41. Mr. Champagne appealed the July 14,
2003 effective date to the Board, arguing he “should be
compensated from 1987 instead.” App’x 44.
In October 2020, the Board issued a decision denying
an effective date earlier than July 14, 2003. With respect
to Mr. Champagne’s 1987 Application, the Board found
that his application contained “no suggestion of an
intention . . . to make a claim for service connected
disability benefits [i.e., compensation] in addition to the
non-service connected pension benefits.” App’x 61. “Under
these circumstances,” the Board concluded, “there was no
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CHAMPAGNE v. MCDONOUGH 4
requirement for [the] VA to consider the claim for pension
as also one for compensation.” Id.
Mr. Champagne appealed the Board’s decision to the
Veterans Court. On July 11, 2022, the Veterans Court
affirmed the Board’s October 2020 decision. Citing its
precedent, namely Stewart v. Brown, 10 Vet. App. 15
(1997), the Veterans Court determined that under
38 C.F.R. § 3.151(a), the “VA may consider a claim for
pension to include a claim for compensation, but it is not
required to do so.” App’x 5 (emphasis in original).
According to the Veterans Court, then, the Board
permissibly construed Mr. Champagne’s 1987 Application
claim as not containing a claim for service connection
compensation. The Veterans Court further concluded that
it “need not determine” whether the RO had, in its January
2018 rating decision, “made . . . a factual finding” that the
1987 Application included a compensation claim because,
even if the RO had done so, “the Board would not be bound
by that finding.” Id. at 7 & n.59.
Mr. Champagne timely appealed the Veterans Court’s
decision to us.
II
Our jurisdiction to review judgments of the Veterans
Court is limited. We may review the validity of a Veterans
Court decision “on a rule of law or of any statute or
regulation . . . or any interpretation thereof . . . that was
relied on by” the Veterans Court. 38 U.S.C. § 7292(a).
However, “[e]xcept to the extent that an appeal . . .
presents a constitutional issue,” we may not review “a
challenge to a factual determination” or “to a law or
regulation as applied to the facts of a particular case.”
Id. § 7292(d)(2).
“We review questions of statutory and regulatory
interpretation de novo.” Cavaciuti v. McDonough, 75 F.4th
1363, 1366 (Fed. Cir. 2023). We “hold unlawful and set
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aside any regulation or any interpretation thereof” that we
find to be “(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; (C) in
excess of statutory jurisdiction, authority, or limitations, or
in violation of a statutory right; or (D) without observance
of procedure required by law.” 38 U.S.C. § 7292(d)(1).
III
Mr. Champagne raises two issues on appeal. First, he
contends that the Veterans Court misinterpreted
38 C.F.R. § 3.151(a) as not requiring the VA to treat his
1987 Application as both a claim for pension benefits
(“pension”) and also a claim for service connection
disability compensation. Second, as an alternative
argument, he contends that the Veterans Court engaged in
impermissible factfinding. We address each issue in turn.
A
Before reaching the merits, we first consider the
government’s contention that we lack jurisdiction to review
Mr. Champagne’s appeal. The government argues that the
Veterans Court did not interpret 38 C.F.R. § 3.151(a) but,
instead, “simply applied section 3.151(a) to the facts,
including the language of Mr. Champagne’s September
1987 application.” Appellee’s Br. 15. We disagree.
In rejecting Mr. Champagne’s contention that his 1987
Application must be treated as both a claim for pension and
a claim for compensation, the Veterans Court, relying on
its Stewart precedent, articulated its view that the
language of § 3.151(a) “is permissive – not mandatory,”
meaning that “VA may consider a claim for pension to
include a claim for compensation, but it is not required to
do so.” App’x 5 (emphasis in original). These statements
show that the Veterans Court was elaborating on the
meaning of, and thus interpreting, the regulation, not
merely applying it to a particular factual scenario. See
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CHAMPAGNE v. MCDONOUGH 6
Forshey v. Principi, 284 F.3d 1335, 1349 (Fed. Cir. 2002) (en
banc) (“[A]n interpretation of a statute or regulation occurs
when its meaning is elaborated by the court.”). Thus, we
do not dismiss this appeal for lack of jurisdiction.
B
Mr. Champagne contends that a proper reading of
38 C.F.R. § 3.151(a) requires the VA to construe an
application, such as his 1987 Application, as both a claim
for a pension and a claim for compensation.
Section 3.151(a) provides:
(a) General. A specific claim in the form[2]
prescribed by the Secretary must be filed in
order for benefits to be paid to any individual
under the laws administered by VA.
(38 U.S.C. 5101(a)). A claim by a veteran for
compensation may be considered to be a claim
for pension; and a claim by a veteran for
pension may be considered to be a claim for
compensation. The greater benefit will be
awarded, unless the claimant specifically
elects the lesser benefit.
2 The title of the form Mr. Champagne used,
“Veteran’s Application for Compensation or Pension,” is
arguably ambiguous and, unfortunately, might be
misunderstood as constituting an application for both
pension and compensation benefits, regardless of how the
veteran completes the form. This appeal, however, does
not call upon us to reach any conclusions about any
particular form. Only the regulation is at issue, as Mr.
Champagne’s counsel made clear at oral argument. See
Oral Arg. 10:15-12:28, available at https://oralarguments
.cafc.uscourts.gov/default.aspx?fl=23-1047_04042024.mp3.
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38 C.F.R. § 3.151(a) (emphasis added).
In Mr. Champagne’s view, the two emphasized
sentences mean that “both pension and service connection
[compensation] should have been adjudicated to determine
the greater benefit, and only after specific election by Mr.
Champagne, should the lesser benefit have been awarded.”
Appellant’s Br. 9. The government responds that the
Veterans Court’s interpretation of the regulation is correct:
the VA may exercise its discretion to consider a claim for a
pension to also be a claim for compensation, and vice versa,
but the VA is not required to do so. We agree with the
government.
“When construing a regulation, we begin with the
regulatory language itself to determine its plain meaning.”
Frazier v. McDonough, 66 F.4th 1353, 1357 (Fed. Cir. 2023)
(internal quotation marks and citation omitted). We are
also “required to carefully consider the text, structure,
history, and purpose of a regulation when determining its
meaning.” Id. (internal quotation marks and citation
omitted).
Starting with the language, § 3.151(a) states that “[a]
claim by a veteran for compensation may be considered to
be a claim for pension” (emphasis added). “May” is a
permissive word, not a command. See, e.g., Ravin v. Wilkie,
956 F.3d 1346, 1350 (Fed. Cir. 2020) (“The fact that [a
statute] uses the term ‘may’ means the statute should not
be read as mandatory.”); Andersen Consulting v. United
States, 959 F.2d 929, 932 (Fed. Cir. 1992) (“The use of the
permissive ‘may’ instead of the mandatory ‘shall,’
authorizes the board to employ its discretion . . . .”). Thus,
we “use common sense and presume that the word conveys
some degree of discretion.” McBryde v. United States, 299
F.3d 1357, 1362 (Fed. Cir. 2002). The plain language of
§ 3.151(a), then, establishes that the VA is allowed, but not
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CHAMPAGNE v. MCDONOUGH 8
required, to consider a pension claim as a compensation
claim, and vice versa.3
Mr. Champagne attempts to show that “inferences that
we may rationally draw from the structure and purpose” of
the regulation somehow rebut the plain meaning of “may.”
See McBryde, 299 F.3d at 1362. His effort fails. He relies
primarily on the third sentence of the regulation: “[t]he
greater benefit will be awarded, unless the claimant
specifically elects the lesser benefit.” 38 C.F.R. § 3.151(a).
Mr. Champagne argues that, in order to determine which
benefit is greater, the VA must consider both pension and
compensation claims; otherwise, it has no way of knowing
which amount is greater. Hence, he continues, the VA must
consider an application as seeking both types of benefits.
We are not persuaded. Instead, we read the third
sentence of the regulation as providing the rule of decision
for those instances when the VA considers both types of
benefits. The sentence does not tell the VA anything about
when it must do so. Mr. Champagne’s contrary view would
3 The Veterans Court has held that under certain
circumstances – specifically, where “the record was replete
with evidence showing that the veteran qualified for
disability compensation,” giving the VA “notice that the
[veteran] might be eligible for both” types of benefits – the
VA’s statutory duty to assist, as set out in
38 U.S.C. § 5103A, may require the VA to consider a
pension claim as a claim for both pension and
compensation benefits. See Stewart, 10 Vet. App. at 18-19.
Mr. Champagne does not argue that such circumstances
are present here (and we might lack jurisdiction over such
an argument if it were made). Nonetheless, nothing we
have said here should be read as weakening the VA’s duty
to assist or as precluding the possibility that the Veterans
Court could find certain exercises of VA discretion under
§ 3.151(a) could constitute an abuse of that discretion.
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effectively have us rewrite the plain language of § 3.151(a)
from “may be considered” to “will be considered.” This we
may not do. See Langdon v. McDonough, 1 F.4th 1008,
1013 (Fed. Cir. 2021) (refusing to “rewrite the plain
regulatory language”); see also Kisor v. Wilkie, 588 U.S.
558, 575 (2019) (“[A] court cannot wave the ambiguity flag
just because it [finds a] regulation impenetrable on first
read.”).
Mr. Champagne additionally points to the “specific[]
elect[ion]” language of the third sentence of § 3.151(a),
which he contends “removes any discretion[] from the VA”
as to how it should “construe the application.” Appellant’s
Br. 9. This argument, too, lacks merit. We do not see how
the “specific[] elect[ion]” term limits the VA’s discretion –
as plainly set out in the second sentence of the regulation
– to consider the veteran’s claim as one solely for pension
or compensation benefits. This language, instead, simply
functions to provide the veteran with the ability to choose
which benefit he wishes to elect when the VA evaluates his
claim for both pension and compensation. Nothing about
the third sentence converts the discretionary “may” of the
second sentence into a mandatory obligation of the VA.
The overall regulatory scheme further supports our
conclusion. For example, an adjacent regulation, which
addresses claims for death benefits, reads:
A claim by a surviving spouse or child for
compensation or dependency and indemnity
compensation will also be considered to be a
claim for death pension and accrued benefits,
and a claim by a surviving spouse or child for
death pension will be considered to be a claim
for death compensation or dependency and
indemnity compensation and accrued
benefits.
38 C.F.R. § 3.152(b)(1) (emphasis added). The distinction
between the use of “may” in § 3.151(a), with pension and
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CHAMPAGNE v. MCDONOUGH 10
compensation claims, and “will” in § 3.152(b), with death
claims, shows that if the VA intends to impose a
requirement on itself, it does so with compulsory language.
See generally Duncan v. Walker, 533 U.S. 167, 173 (2001)
(“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.”) (internal quotation marks and citation
omitted).
Finally, Mr. Champagne observes that “when
interpreting veterans’ benefits statutes, any doubt is to be
resolved in the veteran’s favor.” Appellant’s Br. 14 (citing
Brown v. Gardner, 513 U.S. 115, 118 (1994)). However, for
the reasons discussed above, we find no “interpretive
doubt” here. Although § 3.151(a) could have been written
more clearly, its plain language and its context in the
regulatory scheme as a whole unambiguously establish
that the VA has discretion to determine that a veteran is
solely seeking pension or compensation benefits. Thus, we
have no basis to apply the pro-veteran canon of
interpretation. See, e.g., Spicer v. Shinseki, 752 F.3d 1367,
1371 (Fed. Cir. 2014) (stating that lack of ambiguity means
there is no “interpretive doubt” that could give rise to
application of pro-veteran canon of interpretation).
For the foregoing reasons, the Veterans Court’s
interpretation of § 3.151(a) is correct. The VA may, but is
not required to, consider a claim for pension to also include
a claim for compensation, and vice versa.
C
In the alternative, Mr. Champagne contends that the
Veterans Court engaged in impermissible fact finding. It
is not entirely clear what fact Mr. Champagne believes the
Veterans Court found; he seems to principally take issue
with a portion of the Veterans Court’s decision he describes
as a finding that the RO’s January 2018 rating decision
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“made no factual findings” as to whether his 1987
Application for pension was also considered a claim for
compensation. Appellant’s Br. 17-18.
We do not see the Veterans Court as having engaged in
fact finding, either in the portion of its opinion emphasized
by Mr. Champagne or anywhere else. To the contrary, the
Veterans Court expressly stated that it “need not
determine whether the [RO] made . . . a finding” about
which type of benefits Mr. Champagne sought in 1987,
App’x 7 n.59, because even if the RO had made such a
finding, “the Board would not be bound by that finding,”
App’x 7. Thus, the Veterans Court merely decided that any
findings in the RO’s January 2018 rating decision would
not have been dispositive because the Board determined for
itself that Mr. Champagne’s 1987 Application did not
include a claim for compensation.4 We have no basis to
reverse.
IV
We have considered Mr. Champagne’s remaining
arguments and find them unpersuasive. Accordingly, we
affirm the Veterans Court’s decision.
AFFIRMED
COSTS
No costs.
4 To the extent Mr. Champagne challenges the
Board’s finding that his 1987 Application did not include a
claim for service connection compensation, we do not have
jurisdiction to review that factual determination. See
38 U.S.C. § 7292(d)(2).
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