Sally A. Burkhart v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-1334

SALLY A. BURKHART, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued October 24, 2018 Decided January 3, 2019)

Sean S. Twomey, of Los Angeles, California, for the appellant.

Mark D. Gore, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief

Counsel; and Richard A. Daley, Deputy Chief Counsel, all of Washington, D.C., were on the brief

for the appellee.

Before BARTLEY, GREENBERG, and ALLEN, Judges.

ALLEN, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting

opinion.

ALLEN, Judge: This appeal, which is timely and over which the Court has jurisdiction,

see 38 U.S.C. §§ 7252(a), 7266(a), had its genesis when VA issued a certificate of eligibility (COE)

for home loan guaranty benefits to the appellant, a veteran's surviving spouse, and retracted it years

later, citing her actual ineligibility for that congressionally authorized benefit. The appellant raises

three questions of law in asking us to reverse the Board of Veterans' Appeals's (Board's) March

21, 2016, decision denying eligibility for these home loan guaranty benefits. First, we address

whether a veteran's surviving spouse who is entitled to dependency and indemnity compensation

(DIC) under 38 U.S.C. § 1151 is also thereby entitled to ancillary home loan guaranty benefits

under title 38, chapter 37. Second, we consider whether 38 U.S.C. § 3721 (which we will call the

"incontestability provision") bars VA from contesting a surviving spouse's eligibility once the

Agency has issued a COE before a loan is issued. Finally, we address whether the Court may use

equitable principles to grant these home loan guaranty benefits and order VA to guarantee a loan

by employing equitable estoppel, waiver, laches, or injunctive relief.

We hold that (1) neither section 1151 nor chapter 37 confers eligibility for home loan

guaranty benefits on section 1151 beneficiaries such as the appellant; (2) the incontestability

provision does not affect VA's ability to contest a person's eligibility for the home loan guaranty

program before a loan is issued; and (3) equitable principles are not appropriate to grant the

appellant relief in this case. Therefore, the Court will affirm the March 21, 2016, Board decision.

I. FACTS AND PROCEDURAL HISTORY

The operative facts in this appeal are straightforward and uncontested. The appellant is the

surviving spouse of U.S. Army veteran David Burkhart, who served the Nation honorably on active

duty from August 1952 to July 1954 in the Korean Conflict. Record (R.) at 3, 33. Mr. Burkhart

was awarded two Bronze Stars. R. at 33. He was not service connected for any disabilities during

his life.

The veteran's health began to deteriorate in the late 1990s. See, e.g., R. at 846-47. In

September 2003, he was admitted to a VA inpatient nursing facility. R. at 362-63. The veteran

died the following month while still under VA care. R. at 473-74.

After her husband's death, the appellant filed a claim for DIC benefits. R. 748-52. Her

claim was based on 38 U.S.C. § 1151, which provides for compensation in connection with the

death or injury of a veteran in certain circumstances while the veteran was under VA care. R. at

748. VA granted the appellant's claim in an August 2007 rating decision because it determined

that the veteran's "death [while in VA care] was due to an event not reasonably foreseeable." R. at

287; see 38 U.S.C. § 1151(a)(1)(B). There is no indication that the cause of his death was related

to a service-connected disability or that the appellant claimed service connection in connection

with her husband's death.

Now we reach a critical turning point in the facts leading to this appeal. The appellant

sought a COE for home loan guaranty benefits in 2007. R. at 240. These benefits are available

under chapter 37 of title 38 of the U.S. Code. VA issued her a COE that same year. R. at 91, 240.

She did not subsequently enter into a loan transaction with respect to the COE.

In December 2013, she again requested a determination of eligibility for a loan guaranty.

R. at 90. This time, VA notified the appellant that she was not eligible for those benefits. R. at 88-

89. It informed her that the 2007 COE had been "issued in error." R. at 87. The appellant notified

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VA of her disagreement in December 2014. R. at 74-75. VA issued a Statement of the Case in

August 2015 continuing to deny home loan guaranty benefits under chapter 37. R. at 84-86.

The appellant perfected her appeal to the Board in September 2015. R. at 54-55. The Board

found, in its March 2016 decision, that the veteran had no service-connected disabilities during his

lifetime. R. at 4. Nor did he die of a service-connected disability. R. at 3. Additionally, it found

that the "[t]he [a]ppellant is not in receipt of [DIC] under 38 U.S.C.A. §§ 1310 or 1318." Id. Her

entitlement to DIC benefits flowed solely from section 1151. R. at 5-6. Based on these facts, the

Board denied the appellant eligibility for VA home loan guaranty benefits. R. at 7. This appeal

followed.

II. ANALYSIS

The appellant challenges the Board's decision denying her eligibility for home loan

guaranty benefits, basing her principal arguments on her reading of certain provisions of title 38

of the U.S. Code. Appellant's Substitute Brief (Br.) at 6-18. As a last resort, she invokes the Court's

equitable powers as grounds to reverse the Board's decision. Id. at 19-24. Ultimately, her

arguments are not persuasive. We begin by addressing the questions of statutory interpretation and

then turn to matters of equity.

A. The Appellant's Arguments Under Title 38

Statutory interpretation is a pure question of law that we review de novo. Saunders v.

Wilkie, 886 F.3d 1356, 1360 (Fed. Cir. 2018). First, the Court considers a statute's plain language.

Frederick v. Shinseki, 684 F.3d 1263, 1269 (Fed. Cir. 2012). Using the ordinary tools of statutory

construction, the Court determines whether a provision's meaning is clear. Id. In addition, "the

plain meaning of any statutory provision must be determined in light of the statutory scheme as a

whole, the specific context in which the word or provision at issue is used, and the broader context

of the statute as a whole." Hornick v. Shinseki, 24 Vet.App. 50, 52 (2010). Finally, when

considering benefits conferred as a result of section 1151, the caselaw suggests that legislative

history may often be an important consideration in making this assessment no matter the apparent

clarity of the statutory provisions. See, e.g., Alleman v. Principi, 349 F.3d 1368, 1371-72 (Fed.

Cir. 2003) (consulting the legislative history despite finding the statute clear); see also Kilpatrick

v. Principi, 327 F.3d 1375, 1381-82 (Fed. Cir. 2003) (consulting the legislative history after

finding some ambiguity in the statute).

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1. Eligibility Under Section 1151 or Chapter 37

Our first task is to consider whether Congress bestowed on persons in the appellant's

position the home loan guaranty benefits at issue in this appeal. We begin by addressing whether

it has done so under section 1151. Next, we assess whether anything in chapter 37 confers the

benefit on the appellant. And finally, we explore whether the legislative history concerning these

provisions supports the appellant's position.

Turning first to section 1151, that section provides that "[c]ompensation under this chapter

[11] and dependency and indemnity compensation under chapter 13 of this title shall be awarded

for a qualifying additional disability or a qualifying death of a veteran in the same manner as if

such additional disability or death were service-connected." 38 U.S.C. § 1151(a). The keys to

section 1151(a) for purposes of this case are its language "in the same manner as if . . . service-

connected" and its enumeration of chapters in title 38 for which this "as if" service-connected

status applies. Contrary to the appellant's arguments, section 1151(a)'s "as if" language does not

redefine "service-connected" to include disabilities and deaths resulting from postservice VA

medical treatment; nor does it "accord service-connected status." Alleman, 349 F.3d at 1370-71.

Section 1151 beneficiaries may receive compensation under the enumerated chapters as they

would if they were service connected, but they are not service connected. See id.; Hornick, 24

Vet.App. at 55 ("[A]n award of compensation under [section] 1151 is not an award of service

connection."); Mintz v. Brown, 6 Vet.App. 277, 282-83 (1994). "Clearly, a veteran who has been

awarded benefits under [section 1151] is not considered to have been awarded service connection

for purposes of receiving all ancillary benefits offered for veterans with service-connected

disabilities." Alleman v. Principi, 16 Vet.App. 253, 256 (2002), aff'd, 349 F.3d 1368 (Fed. Cir.

2003). Because of this well-settled interpretation, the appellant's arguments to the contrary are

unavailing.

As for the enumerated chapters, the text in subsection (a) refers only to chapters 11 and 13.

Thus, based on the plain language of subsection (a), Congress has limited section 1151

beneficiaries' entitlement to benefits to these chapters. Mintz, 6 Vet.App. at 282. Unless there is

some separate, express congressional action extending other benefits to section 1151 beneficiaries,

a person in the appellant's position is limited to benefits under chapters 11 and 13. See Alleman,

349 F.3d at 1371-72. The Court does not assume the inverse, that Congress extended benefits to

section 1151 beneficiaries unless it manifests an express intent to exclude them. See id. at 1372.

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But there is more to consider in section 1151. Subsection (c) lists two additional chapters,

21 and 39, for purposes of which "[a] qualifying additional disability under this section shall be

treated in the same manner as if it were a service-connected disability." 38 U.S.C. § 1151(c).

Chapter 37 is not listed, and neither chapter 21 nor chapter 39 concerns home loans. The absence

of chapter 37 here is powerful in itself, but its absence takes on greater meaning when one

considers the origins of subsection (c). Its recent addition further supports the conclusion that

Congress does not intend section 1151 beneficiaries to receive chapter 37 benefits.

In 2003, the United States Court of Appeals for the Federal Circuit decided Kilpatrick, 327

F.3d 1375. We will discuss Kilpatrick in greater detail in a moment. For present purposes, it is

sufficient to know that the Federal Circuit concluded there that a section 1151 beneficiary was

entitled to receive specially adapted housing benefits even though those benefits were included in

chapter 21, not chapters 11 and 13. 327 F.3d at 1385. We will soon explore that decision including

how it applies in this case. For now, Congress's reaction to the decision is our focus. In the wake

of Kilpatrick, Congress passed the Veterans Benefits Improvement Act of 2004. Pub. L. No. 108-

454, 118 Stat. 3598 (2004). Congress amended section 1151 to add subsection (c). Id. § 304. The

congressional record shows that Congress explicitly acknowledged the Kilpatrick decision when

amending section 1151. 150 Cong. Rec. H9761-62 (2004). Congress added the chapter at issue in

Kilpatrick, chapter 21, and went on to identify another chapter in title 38, chapter 39 concerning

adaptation to automobiles, to which section 1151's "as if" service-connection concept applied.

Congress did not add chapter 37. Congress's inaction as to chapter 37 while acting as to other

chapters in title 38 strongly supports the conclusion that Congress intends to exclude section 1151

beneficiaries from those eligible for chapter 37 benefits. Congress had the opportunity to add

chapter 37, but it did not.

But section 1151 merely sets the baseline; theoretically, another provision of title 38 could

confer its ancillary benefits on section 1151 beneficiaries if Congress intended that result. The

other place to look for such an indication of Congress's intent is the text of the ancillary benefit

statute at issue, in this case the eligibility provisions of sections 3701 and 3702, title 38, U.S. Code,

in chapter 37. See Alleman, 349 F.3d at 1371-72 (analyzing the text of the ancillary benefit statute

at issue after section 1151); Kilpatrick, 327 F.3d at 1378-79 (analyzing chapter 21's text).

Section 3702 describes those veterans eligible for chapter 37's housing loan benefits. 38

U.S.C. § 3702(a). But the definition of "veterans" is more inclusive than one might assume. Section

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3701(b)(2) states: "The term 'veteran' includes the surviving spouse of any veteran . . . who died

from a service-connected disability . . . ." While the appellant assigns great weight to this

definition, it does not advance her cause.

First, this definition specifically refers to a "service-connected disability." Id. This phrase

requires service connection and is not ambiguous. Compare Alleman, 349 F.3d at 1371-72 (relying

on the unopposed phrase "service-connected disabilities" in section 1922's legislative history to

conclude that the statute required service connection and was not ambiguous), with Kilpatrick, 327

F.3d at 1378-79 (labeling ambiguous "any veteran who is entitled to compensation under chapter

11 of this title for permanent and total service-connected disability" because of the subtly

conflicting references to both chapter 11, which casts a wider net, and service-connected

disability). And it is undisputed that the appellant's husband did not die from a service-connected

disability.

The appellant argues that in Hornick this Court construed the phrase "service-connection

for death" to extend to section 1151 beneficiaries. 24 Vet.App. at 56. True enough, but the

appellant ignores the significance of that phrase's placement in chapter 11, one of section 1151's

enumerated chapters. See id. at 55-56 (construing section 1159 based on its placement in the same

subchapter of title 38 as section 1151—chapter 11—to ensure a "harmonious whole" and

consistency with the statutory scheme of chapter 11); id. at 56 ("We conclude that this holding is

in harmony with the statutory scheme and the general purposes of chapter 11 and of title 38."). In

sum, Hornick doesn't help the appellant and actually undercuts her argument.

Based on section 3701's plain language, the appellant is not eligible for chapter 37 benefits

under section 3701's definition of "veteran" because her husband lacked a service-connected

disability and his death was not service connected.

Even though the plain language of these statutory provisions is clear, we examine the

legislative history for evidence of a relationship between section 1151 and the ancillary benefit at

issue. See Alleman, 349 F.3d at 1371 (determining that the text requires a determination of service

connection but still confirming Congress's intention via the statute's legislative history); Kilpatrick,

327 F.3d at 1378-79, 1381-82 (noting ambiguity in the text and consulting the legislative history

for clarity). It's here that we return to Kilpatrick. In that case, the Federal Circuit instructed that

one must consider the interplay between the various parts of title 38 to ensure that courts are

faithful to Congress's intention to extend certain ancillary benefits to section 1151 beneficiaries.

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As we explain, there is no interplay between chapter 37 benefits and section 1151 similar to the

relationship the Federal Circuit found significant in Kilpatrick between section 1151 and the

ancillary benefit at issue there.

Kilpatrick explored the relationship between section 1151 and chapter 21's specially

adapted housing benefits. 327 F.3d at 1380. Section 1151's predecessor statute listed benefits

available to veterans who suffered disability or death resulting from VA care, with specially

adapted housing benefits among them. Id. Decades later, Congress reorganized what is today title

38 but failed to include the specially adapted housing benefit among those provided to the veterans

who suffered disability or death resulting from VA care. Id. at 1380-81. Because "where you end

up depends on where you begin," the Federal Circuit determined that, because Congress had

expressly conferred those benefits on veterans, mere reorganization of various statutory provisions

did not evince congressional intent to deprive veterans of those benefits that Congress had

previously conferred. Id. at 1382-83. With this case in mind, we examine section 1151's and

chapter 37's legislative history for evidence of a Kilpatrick-like relationship between the statutes,

starting with section 1151's.

Congress intended The Servicemen's Readjustment Act, as the name implies, to help

veterans coming home from World War II readjust to civilian life. H.R. Rep. No. 78-1418, at 2-3

(1944); S. Rep. No. 78-755, at 1-2 (1944). A key component in that Act was the VA home loan

guaranty program, codified at 38 U.S.C. § 694 (1946). Pub. L. No. 78-346, §§ 500-04, 58 Stat.

284, 291 (1944). Section 694 was section 3701's predecessor. Section 1151's predecessor, section

501a, specifically enumerated benefits to which its beneficiaries were entitled. 38 U.S.C. § 501a

(1946). Section 501a did not list section 3701's predecessor, section 694, among the benefits it

conferred. There is no evidence in the legislative history that Congress later intended to change

this relationship or, rather, lack thereof. In other words, there is nothing to suggest that the home

loan guaranty benefit at issue here is like the specially adapted housing benefit at issue in

Kilpatrick. Therefore, section 1151's legislative history does not support conferring chapter 37

benefits on its beneficiaries.

Chapter 37's legislative history likewise contains no indication that Congress intended to

make section 1151 beneficiaries eligible for chapter 37 benefits. Congress amended the program

in the early 1950s to extend eligibility to surviving spouses of eligible veterans who "died . . . as a

result of injury or disease incurred in . . . service." Housing Act of 1950, Pub. L. No. 81-475, §

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301, 64 Stat. 48, 74. If anything, this predecessor statute's language even more clearly excludes

section 1151 beneficiaries than the current language does. The current language uses "service-

connected" shorthand instead of writing out the definition of the current term "service-connected,"

as the old statute did. After a comprehensive review of section 1151's and section 3701's plain

language and legislative history, the Court finds that nothing suggests that Congress intended

section 1151 beneficiaries to receive chapter 37 benefits.

None of the appellant's remaining arguments sway us. The appellant identifies two

amendments to the home loan program and accompanying congressional reports and argues that

they show Congress's "clear" intent to make her eligible, contrary to the statute's plain language.

Appellant's Substitute Br. at 10 (citing 38 U.S.C. § 694 (1953), S. Rep. No. 81-1286, at 90-91

(1950), H.R. Conf. Rep. No. 81-1893, at 47 (1950), and S. Rep. No. 93-1334, at 20-21 (1974)).

First, she identifies one amendment from the 1950s that pertained to the computation of the amount

of benefits available to a veteran, allowing the Secretary to consider whether security for an

existing loan "has been disposed of because of . . . compelling reasons devoid of fault on the part

of the veteran." 38 U.S.C. § 694 (1953); see S. Rep. No. 81-1286, at 90-91 (1950); H.R. Conf.

Rep. No. 81-1893, at 47 (1950). Second, she identifies another amendment from 1976 in which

Congress removed the "compelling reasons devoid of fault" requirement because of VA's

inconsistent application of the standard. S. Rep. No. 93-1334, at 20-21 (1974).

But both amendments relate to computation, not eligibility, and eligibility (at issue in this

case) is an issue entirely separate from computation. The 1950s amendment on computation

appears in subsection (a) of section 694, the predecessor to section 3701, and subsection (a) was

titled "Eligibility; amount of guaranty; computation." 38 U.S.C. § 694 (1953). The congressional

reports show a distinction too. See S. Rep. No. 81-1286, at 90-91 (1950) (separating the eligibility

phrase and the no-fault phrase that the appellant quotes with the sentence beginning "[t]his section

would also provide that in computing the amount of the guaranty or insurance entitlement."); H.R.

Conf. Rep. No. 81-1893, at 47 (1950) (discussing the no-fault provision's impact on computation:

"Under such circumstances the Veterans' Administrator would deduct from the amount of any

succeeding loan . . . ."). The appellant fails to acknowledge that the 1976 amendment explicitly

related to old section 1802(b), concerning computation. S. Rep. No. 93-1334, at 20-21 (1974)

(referring to the amendment as affecting section 1802(b), chapter 37, title 38, U.S.C.); see 38

U.S.C. § 1802 (1959) (containing separate subsections (a) and (b) for eligibility and computation

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of amount of entitlement, respectively). Therefore, neither amendment provides evidence about

Congress's intent as to eligibility.

Finally, the appellant cites several cases for sweeping pro-veteran language related to both

the loan program and the VA system more generally. Appellant's Substitute Br. at 12. But these

macro-level sentiments cannot fill the gaps left in the appellant's statutory interpretation

arguments. The statutory language is clear, and there simply is no evidence in any of the legislative

history that Congress intended to make persons in the appellant's position eligible for the VA home

loan guaranty benefits in chapter 37.

Therefore, we hold that neither section 1151 nor chapter 37 confers eligibility for VA home

loan guaranty benefits on section 1151 beneficiaries such as the appellant. And there is nothing

else in the structure of title 38 that suggests the contrary. Because the appellant's first argument for

eligibility fails, we must consider the appellant's second argument, whichrelies upon a different

provision of title 38.

2. Incontestability Provision: 38 U.S.C. § 3721

For reasons not entirely clear in the record, the first time the appellant sought a guaranty,

VA issued her a COE despite her ineligibility. See R. at 91, 240. The appellant argues that the

incontestability provision in section 3721 prevents VA from contesting a COE recipient's

eligibility after VA issues a COE. Appellant's Substitute Br. at 15-18. The Secretary insists that

the provision does not affect VA's ability to contest a person's eligibility for the home loan guaranty

program and is irrelevant to the appellant's case. Secretary's Substitute Br. at 16-19. The

incontestability provision certainly has meaning. The key questions are with respect to whom and

as to what does incontestability apply? We agree with the Secretary that Congress clearly intended

the incontestability provision to apply to the relationship between the Government and lending

institutions such as banks, not the Government and COE recipients, and as to the documents

guaranteeing the loan, not a COE.

We begin with the statutory language. Section 3721, "Incontestability," provides:

Any evidence of guaranty or insurance issued by the Secretary shall

be conclusive evidence of the eligibility 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 section shall preclude

the Secretary from establishing, as against the original lender,

defenses based on fraud or material misrepresentation. The

Secretary shall not, by reason of anything contained in this section,

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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.

Without a doubt, the incontestability provision is complex. But "complexity and ambiguity

are distinct concepts." Atencio v. O'Rourke, 30 Vet.App. 74, 82 (2018). As we explain, the

complexity in this statutory provision does not make it ambiguous.

To begin with, section 3721 refers to only two entities: the Secretary and a lender. Entirely

absent from the field is any reference to a beneficiary of a home loan guaranty. While this is not

dispositive of the question concerning to whom incontestability applies, it is a powerful indication

that the relevant relationship for the purposes of this statute is the one between the Secretary and

lender. After all, it would be odd if the provision were focused on a beneficiary when that person

is never mentioned.

This interpretation is supported by considering an important phrase in the provision going

to what is subject to the guaranty: "[a]ny evidence of guaranty or insurance." This is a critical

phrase because, regardless of the relationship to which incontestability applies, the plain text

makes clear that what is incontestable is only "evidence of guaranty." So what do we know about

what "evidence of guaranty" is for purposes of section 3721? While this provision does not provide

much clarity, another section in title 38, section 3702, operates with the incontestability provision

as part of chapter 37's "harmonious whole." Hornick, 24 Vet.App. at 55-56. That provision offers

important context for this question.

Section 3702 informs the interpretation of the incontestability provision's plain language

by distinguishing among the various documents involved in applying for a VA home loan

guaranty. In addition, section 3702 provides information on the stages of the loan transaction,

which sets the stage for what Congress was doing:

An honorable discharge shall be deemed to be a [COE] to apply for

a guaranteed loan. Any veteran who does not have a discharge

certificate, or who received a discharge other than honorable, may

apply to the Secretary for a [COE]. Upon making a loan guaranteed

or insured under this chapter, the lender shall forthwith transmit to

the Secretary a report thereon in such detail as the Secretary may,

from time to time, prescribe. Where the loan is guaranteed, the

Secretary shall provide the lender with a loan guaranty certificate or

other evidence of the guaranty. The Secretary shall also endorse on

the veteran's discharge, or eligibility certificate, the amount and type

of guaranty used, and the amount, if any, remaining.

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38 U.S.C. § 3702(c). The relevant loan documents include (1) COEs, (2) loan guaranty certificates,

and (3) other evidence of the guaranty.

Because the provision refers to "a loan guaranty certificate or other evidence of the

guaranty" (emphasis added), it is apparent that Congress considered a loan guaranty certificate to

fall within the larger class of evidence of the guaranty. Conspicuously absent is any indication of

a similar relationship between COEs and evidence of the guaranty. Thus, the phrase "[a]ny

evidence of guaranty or insurance" is best read not to include COEs. That is critical because the

incontestability provision goes only to such "evidence of guaranty." See 38 U.S.C. § 3721.

It is important to note that these documents also relate to certain stages of the transaction,

during which different pairs of actors interact. See 38 U.S.C. § 3702(c); 38 C.F.R. § 36.4328(a)

(2018) (referring to the process of guaranteeing a loan, which is "subject to . . . 38 U.S.C. § 3721,"

as a "transaction"); U.S. Dep't of Veterans Affairs, Summary of VA Home Loan Guaranty Benefits,

at 7 (Nov. 20, 2012, 8:49:02 AM), https://www.benefits.va.gov/BENEFITS/benefits-

summary/SummaryofVAHomeLoanGuarantyBenefits.pdf ("First, you need to get a [COE] from

VA to prove to the lender that you are eligible for a VA loan. Then you can apply for a VA-

guaranteed loan through any mortgage lender that participates in the VA Home Loan Guaranty

Program."); U.S. Dep't of Veterans Affairs, Buying Process, VA.GOV,

https://www.benefits.va.gov/homeloans/purchaseco_ buy_process.asp (last visited Dec. 17, 2018)

(describing "steps" that veterans should follow to get a VA home loan, including "Get a Certificate

of Eligibility" followed by "Apply for your VA Loan" and "Loan Processing"). The Government

and a veteran exchange a COE during an early stage of the transaction. See 38 U.S.C. § 3702(c)

(providing early, in the second sentence of the subsection: "Any veteran who does not have a

discharge certificate . . . may apply to the Secretary for a [COE]."); U.S. Dep't of Veterans Affairs,

Summary of VA Home Loan Guaranty Benefits, at 7 (Nov. 20, 2012, 8:49:02 AM),

https://www.benefits.va.gov/BENEFITS/benefits-

summary/SummaryofVAHomeLoanGuarantyBenefits.pdf ("First, you need to get a [COE] from

VA to prove to the lender that you are eligible for a VA loan.").

On the other hand, the government and a lender exchange a loan guaranty certificate or

other evidence of the guaranty during a later stage of the transaction. See 38 U.S.C. § 3702(c)

(providing later, in the fourth sentence of the subsection: "Where the loan is guaranteed, the

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Secretary shall provide the lender with a loan guaranty certificate or other evidence of the

guaranty."). The incontestability provision speaks to any evidence of guaranty, implicating that

later stage of the transaction during which the Government and a lender interact. See 38 U.S.C. §

3721. Because the incontestability provision concerns this later stage, it supports a reading of

section 3721 as concerning a lender, not a beneficiary.

The appellant makes a plain language argument that conflates the eligibility of a person for

participation in the program and the eligibility of a loan for guaranty. Appellant's Substitute Br. at

15-18. But these are quite different things. Compare 38 U.S.C. § 3702(a) (describing eligible

veterans), with 38 U.S.C. § 3703(a)(1) (discussing the terms on which a loan becomes eligible for

guaranty and upper limits on amounts). Just because a person is eligible to participate in the

program does not mean that the program will guarantee any loan he or she wants. The loan must

also meet separate requirements. See 38 U.S.C. § 3703(a)(1). Additionally, an eligible person could

seek a loan in an amount that the Government proscribes (ineligible loan) and a loan within the

statutory amount requirements (eligible loan) at the same time. To drive the point home, a person

without a COE could try to seek guaranty of an otherwise eligible loan but would not get through

VA's door.

Moreover, the incontestability provision speaks to "the eligibility of the loan," not of a

person. This language further reinforces the previously explained clear intent of Congress because

it relates to the later stage of the transaction during which the Government and the lender interact.

A lender confirms a loan's eligibility with the Government and receives from the Government a

loan guaranty certificate or other evidence of guaranty as reassurance.1

Although we could end the inquiry here, the incontestability provision's legislative history

bolsters our interpretation. See INS v. Cardoza-Fonesca, 480 U.S. 421, 432 n.12 (1987) (consulting

legislative history to confirm plain language analysis); Glaxo Operations U.K. Ltd. v. Quigg, 894

F.2d 392, 395 (Fed. Cir. 1990) (same); Atencio, 30 Vet.App. at 84 (same). That history supports

the conclusion that Congress intended the incontestability provision to affect the relationship

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It is worth noting in passing that the scant caselaw concerning the incontestability provision is not helpful. First,

there is no binding precedent interpreting the incontestability provision. Indeed, there are only three reported cases

that even mention the provision. See United States v. Neder, 136 F.3d 1459 (11th Cir. 1998), aff'd in part, rev'd in

part, 527 U.S. 1 (1999); Century Fed. Sav. & Loan Ass'n of Long Island v. Roudebush, 618 F.2d 969 (2nd Cir. 1980);

Mt. Vernon Coop. Bank v. Gleason, 367 F.2d 289 (1st Cir. 1966). The only even marginally relevant decision, Mt.

Vernon Coop. Bank, contains seemingly contradictory observations, none of which are helpful to the inquiry and all

of which are dicta. See 367 F.2d at 290-92.

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between the Government and lending institutions. As we explain, the provision was Congress's

response to the need to incentivize lending institutions to purchase veterans' loans. This purpose is

critically important because it highlights the actor with whom Congress was concerned with

respect to incontestability. And as the Supreme Court has recently noted, one can use the purpose

of a statute to assess the accuracy of a given interpretation. See Hughes v. United States, 584 U.S.

___, ___, 138 S. Ct. 1765, 1776 (2018).

While amending The Servicemen's Readjustment Act of 1944, Congress created the

incontestability provision. Pub. L. No. 80-864, § 5, 62 Stat. 1206 (1948).2 Congress enacted this

provision as part of a whole scheme restoring a secondary GI-mortgage market. 94 Cong. Rec.

9440, 9496 (1948). Incontestability comes into play "once [the mortgage] has been sold in the

secondary market." Id. at 9496. One representative opined that "this bill is vitally important to the

veterans’ housing program" because "[t]he most serious check on housing today apparently is the

piling up of GI loans in the banks" and "[t]his bill provides a secondary market for GI housing

loans" to move them out of the banks. Id. at 9500. A senator echoed this sentiment, observing that

"this bill meets [the] particular phase of the problem": "where banks have filled themselves up

with this type of loan, and do not propose to take any more loans of this character." Id. at 9440-

41. An earlier report further clarifies the beneficiary of the incontestability provision: "Lenders

have reached the saturation point for this type of paper, unless they are assured of support for a

portion of their commitments, both present and future." S. Rep. No. 80-1701, at 2 (1948); see also

H.R. Rep. No. 80-2157, at 1 (1948). Congress also discussed the importance of assurances to

lenders regarding risk inherent in veterans' home loans. H.R. Rep. No. 80-2157, at 3 (1948). All

of this reinforces the textual analysis concluding that section 3721 is focused on lenders, not

beneficiaries.

Because Congress's intent is clear as to the operation of the incontestability provision

whether one considers only the statutory language or also consults the legislative history, we must

give effect to that unambiguously expressed intent. Section 3721 does not assist the appellant in

her challenge to the Board's decision.

2

The current version of the statute is substantively the same as the original with only minor superficial changes (e.g.,

substituting "Secretary" for "Administrator"). Compare Pub. L. No. 80-864, § 5, 62 Stat. 1206 (1948), with 38 U.S.C.

§ 3721.

13

But even if we considered the statute ambiguous, VA's implementing regulation, 38 C.F.R.

§ 36.4328, adopts a permissible interpretation of such ambiguity, and the Court would defer to it

under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844-45 (1984). That

regulation speaks in terms of "loans guaranteed or insured," 38 C.F.R. § 36.4328(a), which relates

to the later stage of the transaction when the Government and lenders interact. It also describes

circumstances that would "constitute a defense against liability on account of the guaranty or

insurance of the loan." 38 C.F.R. § 36.4328(a)(1). The incontestability provision still doesn't

benefit the appellant.

B. Equity

Having rejected the appellant's statutory arguments, we turn to her assertion that equity

provides a basis on which to rule in her favor. The appellant seeks equitable relief from the Court

based on four principles of equity: injunctive relief, equitable estoppel, laches, and waiver.

Appellant's Substitute Br. at 19-24. As we explain, these equitable principles provide an

insufficient foundation for relief in this case.

1. Burris v. Wilkie

Before addressing each of the equitable doctrines the appellant advances, we consider a

more general matter concerning this Court and its equitable powers. The Federal Circuit recently

considered the scope of our equitable authority in Burris v. Wilkie, 888 F.3d 1352 (Fed. Cir. 2018).

The Federal Circuit recognized that, though this Court has equitable authority, that authority is

constrained by the jurisdiction Congress conferred on the Court. Id. at 1360-61. It is possible that

Burris standing alone forecloses the appellant's request for relief in this appeal.

Burris recognized that Congress conferred certain equitable authority on the Secretary. 888

F.3d at 1358 (citing 38 U.S.C. § 503(b)). In contrast, Congress did not provide this Court with a

similar statutory grant of equitable power. Id. This fact was critical to the Burris court's conclusion

that the equitable relief sought from our Court in that case was not available. Id. at 1358-59. The

same is true here.

Section 503(b) provides that the Secretary has the authority to grant equitable relief if he

or she "determines that a . . . surviving spouse . . . has suffered loss as a consequence of reliance

upon a determination of the Department of eligibility or entitlement to benefits, without knowledge

that it was erroneously made." 38 U.S.C. § 503(b). Assuming without deciding that the appellant

has suffered a loss, her situation may be governed by this provision. Thus, Congress has

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specifically conferred on the Secretary the equitable power to address the appellant's situation, and

it has not done so with respect to this Court. Just as in Burris, accepting the appellant's invitation

to exercise equitable power in this context would inappropriately expand our jurisdiction.3 888

F.3d at 1358-59.

Finally, Burris addressed an attempted invocation of the Court's "broad inherent equitable

powers," beyond its statutory powers. Id. Burris distinguished the cases on which the appellant

there relied to support a broad conception of the Court's equitable power by noting that "[t]hose

cases . . . either involved relief provided by other statutes (e.g., the All Writs Act) or interlocutory

or procedural relief not comparable to the substantive, monetary relief that Appellants seek here."

Id. at 1361 (emphasis in original). Though the Federal Circuit acknowledged the Court's "authority

to grant certain forms of non-substantive equitable relief required to enable the [Court] to carry

out its statutory grant of jurisdiction," it cautioned that "the Veterans Court cannot invoke equity

to expand the scope of its statutory jurisdiction." Id. (emphasis in original). The appellant's

requested relief is more like the substantive relief in Burris than the non-substantive types of relief

that Burris recognized as a part of the Court's arsenal. Simply put, assuming the appellant loses on

the other issues, she asks the Court to decide she wins based solely on equity and to grant her a

benefit in contravention of Congress's statutory scheme that proscribes her eligibility. She wants a

home loan guaranty from VA. While this relief is not necessarily monetary given that many

veterans will never suffer a loss requiring VA to outlay funds, this relief is substantive in that the

Court would decide the merits of her entitlement to a home loan guaranty, which may require an

outlay of funds should she default. The appellant asks to win, not to continue litigating. To give

her such a win based solely on equity would expand the scope of our jurisdiction, and we cannot

do that.4

3

It is also noteworthy that section 503(b) is not restricted to the payment of money, the relief at issue in Burris. Rather,

the provision extends to "relief . . . the Secretary determines is equitable, including the payment of moneys." 38 U.S.C.

§ 503(b).

4

We also note that granting equitable relief in this context would potentially run afoul of the Appropriations Clause.

See Burris, 888 F.3d at 1359 (citing U.S. CONST., art. I, § 9, cl. 7). The doctrine of constitutional avoidance counsels

that we should interpret our jurisdictional statute and section 503(b) to avoid addressing this serious question. See

Jennings v. Rodriguez, __ U.S. __, 138 S. Ct. 830, 836 (2018) ("Under the constitutional-avoidance canon, when

statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious

constitutional doubts and instead may adopt an alternative that avoids those problems."); Burris, 888 F.3d at 1359

("We decline to interpret the Veterans Court's jurisdictional statute in a manner that runs afoul of–or at a minimum

raises serious questions pertaining to–this constitutional restriction [referring to the Appropriations Clause].").

15

2. Individual Equitable Devices

Even if Burris does not cover this situation, the specific types of equitable remedies the

appellant seeks are not appropriate in this context. The appellant first refers to injunctive relief.

Though the Court has the power to enter an injunction as a remedy in an appropriate case, see

Kaplan v. Brown, 7 Vet.App. 425, 427-29 (1995), this does not help the appellant. She first must

establish that she is entitled to prevail. The injunction can't do that. In other words, were we to rule

in the appellant's favor, we could use an injunction to implement relief, but it would not act as its

own theory supporting why the appellant wins.

We now turn to estoppel. As a threshold matter, it is unclear whether one may ever estop

the Government. See Gazaille v. McDonald, 27 Vet.App. 205, 211 (2014) ("The United States

Supreme Court has never held that equitable estoppel may be applied against the Government,

although it has, perhaps, left the door to that possibility slightly ajar."). But we need not explore

this question fully now. We find it important that Congress may essentially authorize the use of

estoppel-like principles against the Government. Congress did so, for example, by adopting an

incontestability provision similar to the one discussed above that functionally allows certain

private parties to estop the government in analogous situations such as the Federal Housing

Administration's (FHA's) mortgage insurance program. Jay F. Zook, Inc. v. Brownstein, 237 F.

Supp. 800, 807 (1965) (analyzing the FHA program's incontestability provision contained in 12

U.S.C. § 1709(e)). This estoppel-authorization concept is relevant to the case at hand because

Congress likened the veterans' loans incontestability provision to the FHA loans' incontestability

clause. 94 Cong. Rec. 9440 (1948); H.R. Rep. No. 80-2157, at 3 (1948). If Congress provided

private parties a statutory means to estop the Government in section 1709(e), it follows that

Congress did so too in section 3721, given the similar language in these provisions and

intentionally parallel purpose and scope. Compare 38 U.S.C. § 3721, with 12 U.S.C. § 1709(e).

But as we have explained, Congress intended that only lenders receive this privilege of estoppel.

Because Congress uses explicit statutory grants to give private parties this privilege, we decide

that Congress's decision not to grant this privilege to others means that Congress intended to

withhold this privilege from them. Therefore, equitable estoppel is not available to the appellant

here even if in some theoretical sense the Government can be estopped.

And the appellant fares no better with her final two theories, laches and waiver. These

devices do not serve as affirmative theories of relief, yet the appellant attempts to use these

16

defenses on offense. See Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 666-67

(9th Cir. 1998) (citing Rennie & Laughlin, Inc. v. Chrysler Corp., 242 F.2d 208, 210 (9th Cir.

1957)) ("[I]t is settled that waiver can be employed only for defensive purposes. . . . The shield

cannot serve as a sword."); N. Pac. Ry. Co. v. United States, 277 F.2d 615, 624 (10th Cir. 1960)

("[L]aches is available only as a bar to affirmative relief."); LaPrade v. Rosinsky, 882 A.2d 192,

198 (D.C. 2005) (prohibiting parties from using the laches shield as a sword); Corona Props. of

Fla., Inc. v. Monroe Cty., 485 So. 2d 1314, 1318 (Fla. 3d DCA 1986) (preventing a business from

arguing that laches barred the county from revoking a building permit) Short v. Rapping, 522

N.Y.S. 2d 201, 202 (2d Dep't 1987) (prohibiting parties from using the laches shield as a sword).

Therefore, we conclude that the appellant can't win on either theory here.

For all these reasons, we hold that we may not use equitable principles to give the appellant

the substantive relief she seeks in this matter.

III. CONCLUSION

After consideration of the parties' briefs, oral argument, the record on appeal, and the

governing law, the Court AFFIRMS the March 21, 2016, Board decision denying the appellant

eligibility for home loan guaranty benefits.

GREENBERG, Judge, dissenting: I respectfully, but emphatically, disagree with my

esteemed colleagues. The interpretation of the statute is entirely clear to me. The appellant is the

widow of Korean War combat veteran David Burkhart. Record (R.) at 33 (DD Form 214). The

veteran earned two Bronze Stars during his service. R. at 33. The veteran died in October 2003

while under VA medical care. R. at 473-74. In August 2007, VA granted the appellant dependency

and indemnity benefits under 38 U.S.C. § 1151 because it found that the veteran's "death . . . was

due to an event not reasonably foreseeable." R. at 287; see 38 U.S.C. § 1151(a)(1)(B).

In December 2007, the appellant sought a certificate of eligibility (COE) for home loan

guaranty benefits as provided under 38 U.S.C. §§ 3701 et seq. (chapter 37). R. at 240. The COE

was issued that month, although the appellant did not apply for a home loan using this certificate.

R. at 91. The appellant requested another COE in December 2013. R. at 90. VA informed the

appellant that the December 2007 COE was issued in error and that the appellant was not eligible

17

for home loan guaranty benefits as a section 1151 beneficiary. R. at 87-89. In March 2016, the

Board of Veterans' Appeals affirmed this denial. R. at 4-7. This appeal ensued.

A review of the relevant statutory provisions shows that Congress intended a result

different from that reached by the majority. Congress provided for dependency and indemnity

compensation for a qualifying death "in the same manner as if such . . . death [was] service-

connected." 38 U.S.C. § 1151(a) (emphasis added). Congress established home loan guaranty

benefits to be provided to any eligible "veteran," a term that includes "the surviving spouse of any

veteran . . . who died from a service-connected disability." 38 U.S.C. §§ 3701(b)(2), 3702-03.

Because her husband's death is treated as if it had been service-connected, the appellant must

qualify as a surviving spouse of a veteran "who died from a service-connected disability" for the

purposes of entitlement to home loan guaranty benefits; otherwise, the words "as if" are rendered

meaningless. Cf. United States v. Butler, 297 U.S. 1, 65, (1936) ("These words cannot be

meaningless, else they would not have been used."); ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS 174 (West eds. 2012) ("If possible, every

word and every provision is to be given effect (verba cum effectu sunt accipienda). None should

be ignored. None should needlessly be given an interpretation that causes it to duplicate another

provision or to have no consequence.").

"[T]he meaning of statutory language, plain or not, depends on context." Conroy v.

Aniskoff, 507 U.S. 511, 515 (1993) (quoting King v. St. Vincent's Hosp., 502 U.S. 215, 221, (1991).

Title 38 is an imperfect collage meant to organize decades of Congressional intent towards veterans

into a consumable statutory scheme. See Pub. L. No. 85-857, 72 Stat. §§ 1105 et seq. (the

legislation creating title 38 was titled "An Act to consolidate into one Act all of the laws

administered by the Veterans' Administration, and for other purposes"). The addition of section

1151(c) does not reflect the desire of Congress to limit ancillary benefits under this section to those

in chapters 21 and 39. Such a position would suggest that Congress intended to provide specially

adaptive housing and automotive benefits, but no other benefit, to a woman who is a widow solely

because of improper VA care. There is no logical justification for this conclusion. The addition of

section 1151(c) in 2004, in response to the Federal Circuit's decision in Kilpatrick v. Principi,

merely evidences an admission of a drafting oversight of dense legislation. See 327 F.3d 1375,

1383 (2003) ("Throughout the various [legislative] changes, Congress has given no indication of

any intention to disturb the historical eligibility of veterans disabled by VA medical treatment for

18

the housing benefit that was conferred when the benefit was inaugurated in 1948"). Therefore,

unless Congress specifically excluded an ancillary benefit from the coverage of section 1151, the

Court must be tasked with determining the historical intent of Congress in regard to that benefit.

See Henderson v. Shinseki, 562 U.S. 428, 432 n.2 (Veterans Court's scope of review, § 7261, is

similar to that of an Article III court reviewing agency action under the Administrative Procedure

Act, 5 U.S.C. § 706); see also Kilpatrick, 327 F.3d at 1378.

A review of the statutory context and background of the home loan guaranty program

confirms that the appellant is an intended recipient of the benefit. Congress enacted the home loan

guaranty program via the Servicemen's Readjustment Act of 1944. See Pub. L. No. 78-346, 59

Stat. § 284 (1944). Shortly after the Act's enactment, Congress determined that "modifications and

improvements in the existing home-loan programs of the Veterans' Administration [were needed]

. . . to give greater assistance and stimulus to increased production of privately financed housing

of sound standards at more moderate sales prices and rents." Senate Report No. 892 81st Congress

1st Session. To achieve this goal, Congress liberalized the program in 1950 to allow broader

Veteran eligibility. See Pub. L. No. 81-475, 284 Stat. § 301.

The discourse surrounding the act and its accompanying amendments demonstrate

Congress's intent to spur private enterprise and make additional moderately priced homes available

within the general stream of commerce. See S. REP. NO. 892, 81ST CONG., 1ST SESS.; see also H.R.

REP. NO. 1686, 81ST CONG. 2ND SESS. In other words, the primary purpose of the Act was not to

provide a benefit to those who suffered a disability in service, but instead to provide broad

economic growth through the VA system. To be consistent with this purpose of the Act, Congress

must have intended to provide an expanse of claimants–including those claiming section 1151

benefits–eligibility for this benefit.

While piecemeal legislation has resulted in apparent inconsistencies and ambiguities,

Congress has consistently striven to care for veterans and their families since the beginning of the

Republic. See Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792) ("[T]he objects of

this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress.");

see also 1 Stat. 243 (1792) ("An Act to provide for the settlement of the Claims of Widows and

Orphans barred by the limitations heretofore established, and to regulate the Claims to Invalid

Pensions."). It is the duty of the courts to ensure that the executive implements the statutes that

Congress enacts on behalf of veterans and their families. See Marbury v. Madison, 5 U.S. 137, 164

19

(1803) ("By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war

is ordered to place on the pension list, all persons whose names are contained in a report previously

made by him to congress. If he should refuse to do so, would the wounded veteran be without

remedy?").

After consideration of the above, I would have held that the appellant was entitled to the

home loan guaranty benefits ancillary to her section 1151 dependency and indemnity benefits.

20