Petition for Writ of Certiorari — Veteran Warriors, Inc., et al., Petitioners v. Denis R. McDonough, Secretary of Veterans Affairs

APPENDIX

1a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

————

2021-1378

————

VETERAN WARRIORS, INC., ANDREW D. SHEETS,

KRISTIE SHEETS,

v.

Petitioners

SECRETARY OF VETERANS AFFAIRS,

Respondent

————

Petition for review pursuant to

38 U.S.C. Section 502.

————

Decided: March 25, 2022

————

Before MOORE, Chief Judge, REYNA and CHEN,

Circuit Judges.

MOORE, Chief Judge.

Veteran Warriors, Inc., Andrew D. Sheets, and

Kristie Sheets (Petitioners) petition for review of a

final rule promulgated by the Department of Veterans

Affairs.1 They claim seven parts of that rule are invalid

1

The parties do not identify any relevant distinction between

the VA and the Secretary of Veterans Affairs. Therefore, we refer

to them collectively as the VA.

2a

under the two-step framework set forth in Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984). The government challenges Petitioners’ standing. For the following reasons, we dismiss

in part, grant in part, and deny in part the petition.

BACKGROUND

In 2010, Congress enacted the Caregivers and

Veterans Omnibus Health Services Act, Pub. L. No.

111-163, 124 Stat. 1130 (Caregivers Act) (codified in

scattered sections of title 38). That Act required the

VA to establish two programs, both of which were

designed to help individuals who provide eligible

veterans with personal care services. One program

provided assistance to family caregivers—individuals

who provide veterans with personal care services and

who are related to or live with those veterans. 38

U.S.C. § 1720G(a) (detailing the family caregivers program). The other program provided assistance to

general caregivers other individuals who provide veterans with personal care services. Id. § 1720G(b)

(detailing the general caregivers program). To implement these programs, the VA promulgated a series of

regulations. 38 C.F.R. pt. 71 (2015).

In 2018, Congress amended the Caregivers Act.

See John S. McCain III, Daniel K. Akaka, and Samuel

R. Johnson VA Maintaining Internal Systems and

Strengthening Integrated Outside Networks Act, Pub.

L. No. 115 182, 132 Stat. 1393 (VA MISSION Act). The

VA MISSION Act expanded the class of veterans

who qualify as eligible under the family caregivers

program. For example, the program now applies to all

veterans regardless of their service dates, and there

are new avenues for a veteran to qualify as eligible for

benefits. Id. § 161, 132 Stat. at 1438–40.

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To implement the VA MISSION Act and further

improve the family caregivers program, the VA overhauled its regulations. Program of Comprehensive

Assistance for Family Caregivers Improvements and

Amendments Under the VA MISSION Act of 2018, 85

Fed. Reg. 46,226 (July 31, 2020) (Final Rule) (to be

codified at 38 C.F.R. pt. 71); see also Program of

Comprehensive Assistance for Family Caregivers

Improvements and Amendments Under the VA

MISSION Act of 2018, 85 Fed. Reg. 13,356 (proposed

Mar. 6, 2020) (Proposed Rule) (to be codified at 38

C.F.R. pt. 71). In general, the VA attempted to clarify,

streamline, and regularize its implementation of the

Caregivers Act.

Veteran Warriors (a veterans advocacy organization), Andrew Sheets (an eligible veteran), and Kristie

Sheets (Mr. Sheets’ caregiver) petition for review of

seven parts of the Final Rule. They challenge six

definitions in 38 C.F.R. § 71.15 and the residency

requirement imposed in 38 C.F.R. § 71.10(b). The

government contests Petitioners’ standing.

DISCUSSION

I. Standing

Veteran Warriors claims associational standing to

challenge the Final Rule. To succeed in that claim,

Veteran Warriors must prove (1) “its members would

otherwise have standing to sue in their own right,”

(2) “the interests it seeks to protect are germane to

[its] purpose,” and (3) “neither the claim asserted nor

the relief requested requires the participation of

individual members in the lawsuit.” Hunt v. Wash.

State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).

And it must do so for each challenged portion of the

Final Rule. See Nat’l Org. of Veterans’ Advocs., Inc. v.

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Sec’y of Veterans Affs., 981 F.3d 1360, 1370 (Fed. Cir.

2020) (en banc) (noting that standing must be shown

for “the particular challenged rule”); Mil.-Veterans

Advoc. v. Sec’y of Veterans Affs., 7 F.4th 1110, 1122–

32 (Fed. Cir. 2021) (assessing standing on a challengeby-challenge basis).

In large part, Veteran Warriors has carried its

burden to prove standing. It provided a declaration

from Donald Lewis, who has standing to challenge

three aspects of the Final Rule. Pet’rs’ Reply Br. Ex. 1;

see also Government’s Suppl. Br. Ex. A ¶ 3 (noting that

Mr. Lewis was denied benefits based on the VA’s

definitions for “in need of personal care services,”

“inability to perform an activity of daily living,” and

“need for supervision, protection, or instruction”). It

has also proven that Mr. and Ms. Sheets have standing

to challenge a fourth aspect of the Final Rule—tying

benefit amounts to the GS scale.2 Pet’rs’ Reply Br. Ex.

6; see Government’s Suppl. Br. Ex. A ¶ 8 (noting that

Ms. Sheets’ monthly stipend was reduced when the VA

adopted the GS scale). Likewise, Veteran Warriors has

shown that Timothy Chilson can challenge the Final

Rule’s definition of “serious injury.” Mr. Chilson’s 60percent disability rating prevents him from having a

“serious injury” under the Final Rule, despite his need

for personal care services. Pet’rs’ Reply Br. Ex. 8 ¶¶ 4,

7. Veteran Warriors has also identified one of its

members who has standing to challenge the residency

requirement, John Reay. Id. Ex. 5; see also Government’s Suppl. Br. Ex. A ¶ 7 (noting VA denied Mr.

Reay benefits based on that requirement). In addition,

Veteran Warriors has proven that Jason Wright

has standing to challenge part of the Final Rule’s

2

Accordingly, the Sheets have standing to proceed as

individual petitioners.

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definition of “unable to self-sustain in the community,”

specifically the portion that depends on a veteran

being in need of continuous supervision, protection, or

instruction. Pet’rs’ Reply Br. Ex. 7 ¶¶ 6–7; see also

Government’s Suppl. Br. at 8. Each of these challenges

is germane to Veteran Warriors’ purposes as a veterans advocacy organization, and no challenge requires

the involvement of an individual member. Thus,

Veteran Warriors has proven all three prongs of

associational standing for these challenges.

But Veteran Warriors has not carried its burden to

prove standing for part of its challenge to the Final

Rule’s definition of “unable to self-sustain in the

community.” No declarant has standing to challenge

the “three or more activities of daily living” pathway

for satisfying that definition. Mr. Wright’s declaration

is limited to his need for supervision, protection, or

instruction. Pet’rs’ Reply Br. Ex. 7 ¶ 6–7. Monet Gay

has died, preventing her declaration from supporting

standing. Government’s Suppl. Br. at Ex. A ¶ 4. Todd

Servello, Pet’rs’ Reply Br. Ex. 3 ¶ 7, and Kaitlyn

Laycoax, id. Ex. 4 ¶ 7, claim a need for assistance with

all their activities of daily living, undermining any

claim of injury in fact. If those allegations are true, Mr.

Servello and Ms. Laycoax would be entitled to full

benefits regardless of the VA’s “three or more” language. Without an individual member who would have

standing to sue in his own right, Veteran Warriors

cannot establish associational standing for this challenge. Thus, we dismiss Petitioners’ challenge to the

“three or more activities of daily living” requirement

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for a veteran to qualify as unable to self-sustain in the

community.3

II. Merits

Congress delegated the VA authority to “establish a

program of comprehensive assistance for family caregivers of eligible veterans.” See 38 U.S.C. § 1720G(a)(1)(A).

We must, therefore, defer to VA regulations interpreting the statutory framework. See United States v.

Mead Corp., 533 U.S. 218, 229 (2001) (deferring when

“Congress would expect the agency to be able to

speak with the force of law”). And we do so under the

two-step framework set forth in Chevron, 467 U.S. at

842–43. Step one asks “whether Congress has directly

spoken to the precise question at issue.” Id. at 842. “If

the intent of Congress is clear, that is the end of the

matter,” and we “must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43. If,

however, “the statute is silent or ambiguous with

respect to the specific issue,” we proceed to step two

of the Chevron framework, at which we determine

“whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843.

Petitioners challenge seven parts of the Final Rule.

For each challenge, they claim the regulatory text is

both inconsistent with and an unreasonable interpretation of the statutory framework. The government, for its part, defends the VA’s regulations as

3

Petitioners sought leave to file certain supplemental declarations. Because we need not rely on those declarations and because

they do not speak to the “three or more” requirement, we deny

Petitioners’ motion as moot.

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reasonable interpretations of statutory silence or

ambiguity. We take each challenge in turn.4

A. In Need of Personal Care Services

Petitioners’ first challenge is aimed at the VA’s

definition of “in need of personal care services.” See 38

C.F.R. § 71.15. The phrase “in need of personal care

services” appears only once in the statute:

(2) For purposes of this subsection, an eligible

veteran is any individual who . . .

(C) is in need of personal care services because

of—

(i) an inability to perform one or more

activities of daily living;

(ii) a need for supervision or protection based

on symptoms or residuals of neurological or

other impairment or injury;

(iii) a need for regular or extensive instruction or supervision without which the ability

of the veteran to function in daily life would

be seriously impaired; or

4

At various points, Petitioners argue any silence or ambiguity

in the statute must be resolved in the veteran’s favor. See Brown

v. Gardner, 513 U.S. 115, 118 (1994) (reciting “the rule that

interpretive doubt is to be resolved in the veteran’s favor”).

But they fail to develop those arguments, just asserting the

rule without explanation. See, e.g., Pet’rs’ Br. 43, 46, 48, 50, 53,

54, 57. Accordingly, we need not consider whether or how the

pro-veteran canon applies in this case. See SmithKline Beecham

Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (when

a party does not develop an argument, we treat that argument as

waived).

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(iv) such other matters as the Secretary

considers appropriate.

38 U.S.C. § 1720G(a) (emphasis added). A veteran who

is “in need of personal care services” may qualify as an

“eligible veteran,” thereby entitling his family caregivers to benefits. Id.

In the Proposed Rule, the VA read this language and

the broader statutory context as creating a gap. 85

Fed. Reg. at 13,359. It concluded that Congress had

not spoken to the meaning of “in need of personal care

services,” leaving that question to the VA. Id. The VA

then filled that gap with a regulatory definition. See

38 C.F.R. § 71.15. Under § 71.15, a veteran is “in need

of personal care services” when he “requires in-person

personal care services from another person, and without such personal care services, alternative in-person

caregiving arrangements (including respite care or

assistance of an alternative caregiver) would be

required to support the eligible veteran’s safety.”

Petitioners challenge the in-person requirement.

They claim the VA’s interpretation is inconsistent

with the statutory text, which does not establish an

in-person requirement. They also argue the VA’s

interpretation is unreasonable, preventing Chevron

deference at step two. We do not agree.5

5

For this challenge and others, Petitioners suggest the

questions at issue are of “deep “economic and political” significance,” and thus, Congress would not have delegated to the VA

authority to resolve them. Pet’rs’ Reply Br. 12 (quoting King v.

Burwell, 576 U.S. 473, 486 (2015)). But this is not one of the

“extraordinary cases” contemplated in King, 576 U.S. at 485–86,

to which the Chevron framework does not apply. The questions

presented here do not approach the significance of the question

presented in King which involved billions of dollars and affected

millions of people. See J.A. 396 (noting around 15,600 caregivers

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1. Step One

Congress has not spoken to the precise interpretive

question at issue in this challenge—whether a veteran

must require in-person care to be “in need of personal

care services.” The statutory text does not address

where personal care services must be provided; the

statutory structure provides no additional clarity; and

the legislative history does not evidence an unambiguous congressional intent for “in need of personal care

services” to include remote care. Put simply, there is a

gap in the statute.

We start with the meaning of “in need of personal

care services.” Congress defined part of that phrase,

“personal care services,” to mean:

[S]ervices that provide the veteran the following:

(A) Assistance with one or more activities of

daily living.

(B) Supervision or protection based on symptoms or residuals of neurological or other

impairment or injury.

(C) Regular or extensive instruction or supervision without which the ability of the veteran

to function in daily life would be seriously

impaired.

(D) Any other non-institutional extended care

(as such term is used in section 1701(6)(E) of

this title).

38 U.S.C. § 1720G(d)(4). This definition describes

what services qualify as “personal care services”—for

example, assistance with an activity of daily living.

have been awarded benefits). Accordingly, we apply Chevron

throughout.

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But it does not expressly describe where those services

must be provided. That is, the definition does not

directly speak to the interpretive question at issue

here.

Nor can we infer an answer to the interpretive question at issue from that definition. Four subsections

§ 1720G(d)(4)(A) through (D)—delineate the universe

of services that qualify as “personal care services.”

If all of those subsections are unambiguously limited

to in-person care, the statute would compel the

VA’s interpretation.6 At least subsection (C), however,

could be read broadly to include remote services. Id.

§ 1720G(d)(4)(C). Instruction and supervision—even if

regular, extensive, and necessary for a veteran to

function in daily life—conceivably could be administered remotely. A family caregiver could, for example,

instruct a veteran to take life-saving medication over

the phone multiple times a day. Under a broad

interpretation of subsection (C), then, the veteran

could be eligible based on a need for remote personal

care services.

That said, the potential breadth of subsection (C)—

or any other subsection that could be read to include

remote services—does not compel Petitioners’ inter6

The VA’s interpretation would not be compelled if only a

single subsection (or something less than all subsections) were

limited to in-person care because the subsections are listed

disjunctively, rather than conjunctively. To be sure, § 1720G(d)(4)

does not use conjunctive (“and”) or disjunctive (“or”) language

when listing the four statutory categories. Context, however,

shows the disjunctive applies. The definition of “in need of personal care services” uses the disjunctive when listing subsections

very similar to those listed in the definition of “personal care

services.” Compare 38 U.S.C. § 1720G(a)(2)(C) with id. § 1720G(d)(4).

It would be inconsistent for Congress to use the disjunctive in

§ 1720G(a)(2)(C) while intending § 1720G(d)(4) to be conjunctive.

11a

pretation. The vast majority of services that fit neatly

within the statutory definition are administered in

person. Assistance with activities of daily living—like

bathing, toileting, and dressing—occurs mostly (if not

exclusively) in person. See 38 U.S.C. § 1720G(d)(4)(A).

See generally 38 C.F.R. § 71.15 (listing activities of

daily living, including bathing, toileting, and dressing).

Protection and supervision, while perhaps possible to

provide remotely, are largely in-person forms of assistance. It would be difficult to protect or supervise a

veteran over the telephone or a videocall. The nature

of the services suggests that “personal care services”

are meant to be in-person care. While subsections (A)

through (D) are not unambiguously limited to in-person

care, they do not unambiguously include remote care

either. Ultimately, those categories do not provide an

answer to the interpretative question at issue here.

Apart from the statutory definition, the ordinary

meaning of the phrase “personal care services” does

not clarify Congress’ intent regarding where those

services must be provided. No party has identified

a relevant technical meaning for “personal care

services.” See Van Buren v. United States, 141 S. Ct.

1648, 1657 (2021) (“[C]ourts take note of terms that

carry ‘technical meanings.’”). And the word personal

does not limit “personal care services” to those services

administered in person. The VA identified two common

meanings for that word: “done, made, or performed in

person” and “[o]f or relating to a particular person.”

See Proposed Rule, 85 Fed. Reg. at 13,360 (quoting The

American Heritage Dictionary of the English Language

1311 (4th ed. 2000)). In this context, however, the

latter definition fits more naturally. The statute discusses various types of “services,” of which “personal

care services” is one example. See, e.g., 38 U.S.C.

§ 1720G(a)(3)(A)(ii)(II) (“mental health services”); id.

12a

§ 1720G(a)(3)(A)(ii)(VI)(aa) (“financial planning services”);

id. § 1720G(a)(3)(A)(ii)(VI)(bb) (“legal services”); id.

§ 1720G(b) (“support services”). For the other uses of

“services,” the modifier describes what the services

are, not where they are provided. Applied to “personal

care services,” that means the second definition—of or

relating to a particular person—controls. Of the two

definitions, it is the only one that speaks to what the

services are; “personal care services” are services that

relate to a particular veteran. In short, the ordinary

meaning of “personal care services” does not speak to

where those services must be administered.

In addition to defining “personal care services,” the

statute describes which veterans qualify as “in need of

personal care services.” See 38 U.S.C. § 1720G(a)(2)(C).

It does not, however, address the location of personal

care services in that description. In large part,

§ 1720G(a)(2)(C) parrots the language contained in

the definition of “personal care services.” When it does

use different language, the changes are minor. For

example, compare the relevant provisions’ language

regarding activities of daily living:

[§ 1720G(d)(4):] “[P]ersonal care services” . . . means

services that provide . . . assistance with one or

more activities of daily living.

[§ 1720G(a)(2)(C):] [A]n eligible veteran is any

individual who . . . is in need of personal care

services because of . . . an inability to perform one

or more activities of daily living.

(emphases added). The differences here show only

what “in need of” means: in this context, having “an

inability to perform.” That does not speak to where

personal care services are administered. And the other

statutory differences track this pattern, explaining

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what “in need of” means for each aspect of “personal

care services.” Thus, the statutory description of “in

need of personal care services” is also silent regarding

where personal care services must be administered.

Accordingly, no part of “in need of personal care

services” addresses whether personal care services

must be provided in person. The statute defines

“personal care services” and describes which veterans

are “in need of personal care services,” but it says

nothing about where those services must be provided.

Still, we must consider the statutory context before

concluding there is a statutory gap. See Util. Air

Regul. Grp. v. E.P.A., 573 U.S. 302, 320 (2014) (noting

words of a statute must be read in context); cf. Kisor v.

Wilkie, 139 S. Ct. 2400, 2415 (2019) (“[A] court cannot

wave the ambiguity flag just because it found the

regulation impenetrable on first read.”). The parties

identify several provisions as relevant to where

“personal care services” are administered, but no

provision resolves the statutory silence.

First, the statutory definition of “family member”

does not speak to where personal care services are

administered. Family caregiver benefits are available

only to a veteran’s “family member[s].” And subsection

(d)(3) defines who qualifies as a family member:

The term “family member”, with respect to an eligible

veteran under subsection (a), means an individual who—

(A) is a member of the family of the veteran,

including—

(i) a parent;

(ii) a spouse;

(iii) a child;

(iv) a step-family member; and

14a

(v) an extended family member; or

(B) lives with the veteran but is not a member of

the family of the veteran.

Under this definition, a member of the veteran’s

family need not live with him to qualify for benefits.

That does not, however, necessarily bring remote

services within the scope of the phrase “personal care

services.” There is no statutory link between where a

caregiver lives and where personal care services are

administered. So the former provides no insight into

the latter.

Second, the general caregivers program allows for

remote support services, but it says nothing about

where personal care services are administered. The

general caregivers program provides benefits, called

support services, to veterans’ caregivers. Those

benefits include:

(i) Services regarding the administering of personal

care services, which, subject to subparagraph (B),

shall include—

(I) educational sessions made available both in

person and on an Internet website;

(II) use of telehealth and other available technologies; and

(III) teaching techniques, strategies, and skills

for caring for a disabled veteran; . . . .

38 U.S.C. § 1720G(b)(3)(A)(i) (emphases added). While

Congress expressly permitted caregivers to receive

remote training and education, that says nothing

about whether veterans can receive remote care from

these caregivers. There is no statutory link between

the location of support training services for the

caregivers and the location of personal care services

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for the veterans. Thus, this provision does not fill the

statutory silence regarding where personal care

services are administered.

Nor does this provision turn that silence into a

proscription, foreclosing the VA’s interpretation because

Congress called out “in-person” services in one provision while remaining silent in another. Congress

expressly defined “support services” to include both inperson and remote services but remained silent with

respect to “personal care services.” It did so while

delegating to the VA authority to “establish a program

of comprehensive assistance for family caregivers of

eligible veterans.” 38 U.S.C. § 1720G(a)(1)(A). This

suggests Congress delegated the interpretive question

here—where personal care services are administered—

to the VA. “[A] congressional mandate in one section

and silence in another often suggests not a prohibition

but simply a decision not to mandate any solution in

the second context, i.e., to leave the question to agency

discretion.” Catawba Cnty., N.C. v. E.P.A., 571 F.3d

20, 36 (D.C. Cir. 2009).

Third, the statutory stipend provisions do not

address where “personal care services” are administered. Primary family caregivers are entitled to a

monthly stipend. 38 U.S.C. § 1720G(a)(3)(A)(ii)(V).

While Congress delegated to the VA authority to set

the stipend amount, see id. § 1720G(a)(3)(C)(i), it

provided certain guidelines. One guideline uses “home

health care” wages to set a minimum compensation

level:

The Secretary shall ensure, to the extent

practicable, . . . that the amount of the monthly

personal caregiver stipend . . . is not less than the

monthly amount a commercial home health care

entity would pay an individual in the geographic

16a

area of the eligible veteran to provide equivalent

personal care services to the eligible veteran.

Id. § 1720G(a)(3)(C)(ii) (emphasis added). But that is

several steps removed from the question here: where

personal care services are administered. It is less than

clear that home health aides provide only in-person

services. And even if that were true, nothing in the

statute requires a family caregiver to provide the same

services that a home health aide provides. Without

these links, the stipend provision does not speak to

where personal care services are administered.

Fourth, the availability of “in-home” respite care

also does not fill the statutory gap. In addition to a

stipend, primary family caregivers are entitled to:

[R]espite care of not less than 30 days annually,

including 24-hour per day care of the veteran

commensurate with the care provided by the

family caregiver to permit extended respite.

* * *

Respite care provided under subparagraph

(A)(ii)(III) shall be medically and age-appropriate

and include in-home care.

38 U.S.C. § 1720G(a)(3)(A)(ii)(III), 1720G(a)(3)(B)

(emphasis added). The “in-home” language in this

provision suggests that some respite care may be

intended to replace in-person personal care services.

But this does not mean personal care services must

be administered in person. Respite care need only

“include in-home” care; there is no suggestion that

respite care must be limited to such care. A family

caregiver may be providing only remote services,

in which case in-person respite care may not be

“commensurate with the care provided by [that]

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caregiver” or “medically . . . appropriate.” See id.

§ 1720G(a)(3)(A)(ii)(III), 1720G(a)(3)(B). In such circumstances, remote respite care might be available. It

is also possible for in-home respite care to be provided

when the family caregiver only provided remote care,

e.g., replacing phone call reminders with in-person

reminders. At best, this subsection contemplates some

in-person personal care services that will be replaced

with in-person respite care. It does not, however, limit

personal care services to in-person care.

Fifth, the VA’s monitoring obligations do not limit

“personal care services” to in-person care. As part of

the family caregivers program, the VA must “monitor

the well-being of each eligible veteran receiving

personal care services” and “document each finding

the Secretary considers pertinent to the appropriate

delivery of personal care services to an eligible veteran

under the program.” 38 U.S.C. § 1720G(a)(9)(A)–(B).

And it must “establish procedures” to satisfy those

obligations that “may include . . . [v]isiting an eligible

veteran in the eligible veteran’s home to review

directly the quality of personal care services provided

to the eligible veteran.” Id. § 1720G(a)(9)(C)(i) (emphasis

added). This language, at best, contemplates that

some personal care services may be provided in

person. Indeed, the VA could visit a veteran’s home to

observe how remote services are administered. The

monitoring obligations do not answer the interpretive

question here.

Separate from the text and structure of the statute,

Petitioners claim § 1720G’s history and purpose

foreclose the VA’s interpretation. They point to the

VA MISSION Act as evidencing Congress’ intent to

expand benefits. Certainly, that Act expanded the

definitions of “personal care services” and “in need of

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personal care services.” See id. § 161, 132 Stat. at

1439–40. By doing so, it provided benefits to additional

caregivers. But it did not speak to where personal care

services must be administered for a caregiver to be

entitled to benefits. Petitioners have shown nothing

more than a vague congressional intent to expand

benefits, and that cannot overcome the statutory

silence. See, e.g., Hyundai Steel Co. v. United States,

19 F.4th 1346, 1354– 55 (Fed. Cir. 2021) (holding

general statements in the legislative history did not

express Congress’ intent regarding the interpretive

question at issue); In re Gateway Radiology Consultants, P.A., 983 F.3d 1239, 1261 (11th Cir. 2020) (noting

legislative history rarely speaks with sufficient clarity

to resolve an interpretive question at step one).

All told, Congress has not spoken to the precise

interpretive question at issue. The text and structure

of the statute are silent. And the legislative history

does not evidence Congress’ clear intent. Thus, the

Chevron step one analysis is not decisive, and we must

continue on to step two.

2. Step Two

The VA’s interpretation of the statutory silence—

the in-person requirement promulgated in 38 C.F.R.

§ 71.15—is a permissible construction of the statute.

That interpretation reflects the VA’s reasonable policy

judgment. See Nat’l Cable & Telecomms. Ass’n v.

Brand X Internet Servs., 545 U.S. 967, 986 (2005)

(“[W]e defer at step two to the agency’s interpretation

so long as the construction is a reasonable policy choice

for the agency to make.”). And it does not conflict with

the regulatory scheme. Accordingly, we must defer to

the VA’s interpretation.

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The VA promulgated its definition of “in need of

personal care services” to clarify the bounds of the

family caregivers program. It explained how the

regulatory definition of personal care services “does

not delineate whether such services must be provided

in person or can be provided remotely[.]” Proposed

Rule, 85 Fed. Reg. at 13,359. Looking to the statutory

text, the VA found that the family caregivers program

“was intended to provide assistance to [f]amily [c]aregivers who are required to be physically present to

support eligible veterans in their homes.” Id.; accord

Final Rule, 85 Fed. Reg. at 46,228. The VA, therefore,

promulgated a definition of “in need of personal care

services” that limited the family caregivers program to

veterans who require in-person care. It believed that

definition “would reduce clinical subjectivity in [the

family caregivers program’s] eligibility determination[]

and thereby improve consistency in the program.”

Proposed Rule, 85 Fed. Reg. at 13,359; accord Final

Rule, 85 Fed. Reg. at 46,228. It also noted how the

definition of “in need of personal care services”

supports the VA’s decision to focus the family caregivers program “on eligible veterans with moderate [to]

severe needs.” See Final Rule, 85 Fed. Reg. at 46,228;

accord Proposed Rule, 85 Fed. Reg. at 13,356.

This explanation shows the VA made a reasonable

policy decision in promulgating its definition of “in

need of personal care services.” It is reasonable for the

VA to prefer clear, objective rules. A clear rule can

reduce costs, promote predictability, and ensure uniform

application. It is also reasonable for the VA to focus on

veterans who have moderate to severe needs. Indeed,

the statutory text supports such a focus. 38 U.S.C.

§ 1720G(a)(2)(B) (restricting eligibility to veterans

who have “serious injur[ies]”). And the VA’s definition

20a

of “in need of personal care services” forwards both of

those goals.

Petitioners claim the VA’s definition of “in need of

personal care services” is entitled to less deference

under Watt v. Alaska, 451 U.S. 259, 273 (1981). But

they have failed to make the predicate showing necessary for Watt to apply: that the “current interpretation

[is] in conflict with [the VA’s] initial position.” See id.

Until the VA promulgated its Final Rule, it had never

considered where personal care services must be

administered. Thus, there was no “initial position” to

create a conflict, and Watt does not apply.

Petitioners also argue the VA has interpreted

“personal care services” inconsistently between the

family and general caregivers programs. Pet’rs’ Reply

Br. 10. But the VA has not interpreted “personal care

services” to include remote care for the general

caregivers program. Indeed, the VA has left that

question open. See Final Rule, 85 Fed. Reg. at 46,229

(The “VA will consider whether changes to the

regulations governing [the general caregiver program]

are appropriate in the future.”); see also Government’s

Resp. Br. at 22 (quoting Proposed Rule, 85 Fed. Reg.

at 13,359). It defined where personal care services

must be administered for the family caregivers program, but it did not address the general caregivers

program. In effect, the VA provided a partial answer

to the question of where personal care services must

be administered. And the VA “ha[s] great discretion to

treat a problem partially and regulate in a piecemeal

fashion.” Transp. Div. of the Int’l Ass’n of Sheet Metal,

21a

Air, Rail & Transp. Workers v. Fed. R.R. Admin., 10

F.4th 869, 875 (D.C. Cir. 2021).7

Ultimately, the VA’s interpretation of the statutory

silence is a permissible construction of the statute. The

VA made a reasonable policy choice, and we must defer

to that choice. We therefore deny the petition as to this

portion of the Final Rule.8

B. Serious Injury

Petitioners next challenge the VA’s definition of

“serious injury.” 38 C.F.R. § 71.15. That phrase

appears in the statutory provision defining “an eligible

veteran”:

[A]n eligible veteran is any individual who . . . for

assistance provided under this subsection [effective

on certain dates] . . . has a serious injury

(including traumatic brain injury, psychological

trauma, or other mental disorder) incurred or

aggravated in the line of [active] duty [during

certain service dates].”

7

We understand the Petitioners’ argument that, if the VA

eventually answers that interpretive question differently for the

general caregivers program, it may be an unreasonable interpretation of the statute. The statutory definition of “personal care

services” applies to both the family and general caregivers

program. 38 U.S.C. § 1720G(d)(4). And the general caregivers

program, like the family caregivers program, is limited to those

veterans “who need[] personal care services.” Id. § 1720G(b)(2).

But Petitioners have not identified a regulation adopting such

an interpretation for the general caregiver program. So that

question is not before us.

8

Because we set aside the VA’s definition of “need for

supervision, protection, or instruction,” we need not address

Petitioners’ argument that definition conflicts with the VA’s

definition of “in need of personal care services.”

22a

38 U.S.C. § 1720G(a)(2)(B) (emphasis added). Unless

a veteran has a “serious injury,” his family caregivers

cannot receive benefits under § 1720G(a).

From 2011 through 2020, the VA defined “serious

injury” as “any injury, including traumatic brain injury,

psychological trauma, or other mental disorder, incurred

or aggravated in the line of [active] duty [during

certain services dates], that renders the veteran or

servicemember in need of personal care services.” See

38 C.F.R. § 71.15 (2011) (interim rule); 38 C.F.R.

§ 71.15 (2015) (final rule). As the VA recognized, this

is “a virtually verbatim recitation of” the statutory

language. Caregivers Program, 80 Fed. Reg. 1357,

1360 (Jan. 9, 2015).

In 2020, the VA revised its definition. Proposed

Rule, 85 Fed. Reg. at 13,365. Because the prior

definition had not “provid[ed] guidance or clarity” as

to the meaning of “serious injury,” the VA had problems implementing the family caregivers program. Id.

at 13,365–66. To resolve those problems, the VA

redefined “serious injury” to mean:

[A]ny service-connected disability that:

(1) Is rated at 70 percent or more by VA; or

(2) Is combined with any other serviceconnected disability or disabilities, and a

combined rating of 70 percent or more is

assigned by VA.

38 C.F.R. § 71.15.

Petitioners argue that redefinition is inconsistent

with and an unreasonable interpretation of the

statutory text. We do not agree.

23a

1. Step One

Congress has not spoken to the interpretive question raised in Petitioners’ second challenge—the

meaning of “serious injury” in § 1720G(a)(2)(B).

Petitioners have not identified a definition for that

phrase, and the surrounding text does not completely

resolve its meaning. The text provides insight into the

meaning of “injury,” but not the meaning of “serious

injury.” The statute is ambiguous, and we must defer

to the VA’s resolution of that ambiguity.

The statutory text fails to provide a definition of

“serious injury.” That term is nowhere to be found in

38 U.S.C. § 1720G(d), the definitional section for the

family caregivers program. In fact, no other provision

in title 38 uses the phrase “serious injury.” A slight

variation—“seriously injured”—does appear in 38

U.S.C. § 3319(h)(5)(B). But that subsection just crossreferences § 1720G(a) without further defining “serious

injury” or “seriously injured.” Id. § 3319(h)(5)(B). And

no common meaning or dictionary definition for “serious

injury” exists in the record before us. Accordingly, the

phrase “serious injury,” by itself, lacks definite meaning.

The surrounding statutory text, however, narrows

the universe of permissible interpretations of “serious

injury.” Congress ensured that phrase would “includ[e]

traumatic brain injury, psychological trauma, or other

mental disorder.” 38 U.S.C. § 1720G(a)(2)(B). Thus,

“serious injury” must include more than just physical

injuries; mental disorders can qualify as serious. And

any interpretation of “serious injury” that excludes all

mental disorders would be unreasonable.

At the same time, the statutory language does

not require “serious injury” to include all “traumatic

brain injur[ies], psychological trauma[s], [and] mental

24a

disorder[s].” Cf. id. Such an interpretation would

lead to “unreasonable results.” Am. Tobacco Co. v.

Patterson, 456 U.S. 63, 71 (1982) (“Statutes should be

interpreted to avoid untenable distinctions and unreasonable results whenever possible.”). It would render

the word serious meaningless for mental disorders—

every mental disorder would qualify as a “serious

injury” because every mental disorder would fall within

the “other mental disorder” category. And it would

create a disparity between the statute’s treatment of

physical and mental disorders. Only serious physical

disorders, but every mental disorder, would render a

veteran eligible under § 1720G(a)(2)(B).

Nor does the statutory text require “serious injury”

to operate as a proxy for veterans who are “in need of

personal care services.” Though much of § 1720G(a)

focuses on the need for personal care services,

§ 1720G(a)(2)(B) expressly requires veterans to also

have incurred or aggravated a serious injury during

active-duty service. Accordingly, “serious injury” must

be distinct from personal care services. If not, the

phrase “serious injury” would have no meaning.

For similar reasons, Petitioners’ arguments for

linking “personal care services” with “serious injury”

based on the legislative history fail. They point to an

Explanatory Statement from Senator Akaka that

seems to equate “serious injury” with the need for

personal care services. 156 Cong. Rec. S2566, S2567

(Apr. 22, 2010) (“Severely injured veterans are defined

as those who need personal care services because . . . .”).

But the statutory text makes clear that “serious

injury” and “in need of personal care services” are separate requirements for a veteran to qualify as eligible.

And the Explanatory Statement cannot overcome the

enacted text. E.g., Church of Scientology of Cal. v.

25a

I.R.S., 792 F.2d 153, 162 (D.C. Cir. 1986) (“The factual

inaccuracy in the case as originally presented to us

shows the wisdom of relying upon the text and

structure of the statute rather than this statement by

a single senator as a means of ascertaining the

Congress’[] intent.”).

Likewise, the purpose of disability ratings—

quantifying a veteran’s impairment in earning capacity—

does not foreclose the VA’s interpretation. Disability

ratings “represent as far as can practicably be determined the average impairment in earning capacity

resulting from [service-connected] diseases and injuries and their residual conditions in civil occupations.”

38 C.F.R. § 4.1. But that purpose does not prevent the

VA from using disability ratings to define “serious

injury.” It is possible that serious injuries are those

injuries that have a great impact on a veteran’s

earning capacity. Or, perhaps, disability ratings may

serve as an easily administrable proxy for “serious

injur[ies]” under the plain meaning of that phrase.

Nothing in the statutory language, structure, or purpose forecloses that understanding of the word serious.

Finally, Congress’ rejection of an amendment that

would have limited the family caregivers program to

those veterans who would otherwise need nursing

home care does not foreclose the VA’s interpretation.

See 155 Cong. Rec. S11523-02 (Nov. 19, 2009). To be

sure, a veteran’s rating level factors into whether that

veteran is entitled to nursing home care. 38 U.S.C.

§ 1710A. If the veteran has a 70 percent or greater

disability rating and “is in need of” nursing home care,

the VA must provide that care. But this does not

equate eligibility under the family caregivers program

to eligibility for nursing home care. In each instance,

the veteran must also show he is in need of the

26a

particular care sought, either family caregiver benefits

(see 38 U.S.C. § 1720G(a)(2)(C)) or nursing home care

(see 38 U.S.C. § 1710A(a)(2)).

Ultimately, the phrase “serious injury” is ambiguous. It has no statutory definition, and the parties

have not identified a common meaning for that phrase.

The statutory context provides some insight into what

“injury” means, but it does not clarify what injuries are

serious. Implicitly, therefore, Congress delegated that

question to the VA. In such circumstances, we must

defer to the VA’s interpretation of the statutory scheme.

2. Step Two

The VA’s interpretation of “serious injury”—requiring

a 70 percent disability rating—is a permissible construction of the statute. That interpretation reflects

the VA’s reasonable policy judgment. Accordingly, we

must defer to the VA’s interpretation. See Brand X,

545 U.S. at 986 (discussing step two).

The VA amended its definition of “serious injury” to

ease administration of the family caregivers program.

In the VA’s view, its prior definition lacked clarity and

led to “inconsistent eligibility determinations by VA

providers.” Proposed Rule, 85 Fed. Reg. at 13,365–66.

Providers had interpreted the word injury differently,

causing inequitable administration of the family

caregivers program. Id. at 13,366. So the VA expanded

its definition of “serious injury” to include all serviceconnected disabilities, regardless of whether the

disability is an injury. Id. at 13,366–68. It noted how

this definition would be “more objective, inclusive, and

equitable,” especially for the older veterans now

included in the family caregivers program by virtue

of the VA MISSION Act. Id. at 13,367–68. And it

explained how the requirement that the injury be

27a

“incurred or aggravated in the line of duty in the active

military, naval, or air service” is indistinguishable

from the definition of service connection. Proposed

Rule, 85 Fed. Reg. at 13,370 (citing 38 U.S.C. § 101(16)).

Also, to distinguish serious injuries from nonserious injuries, the VA required veterans to have a 70

percent or higher disability rating. Id. at 13,369. It

believed this would help focus the family caregivers

program on those veterans with moderate to severe

needs. Id. And it assessed other rating levels—like 50,

60, and 100 percent finding them either too restrictive

or too lax. Id.; see also Final Rule, 85 Fed. Reg. at

46,248. Moreover, it noted how 98 percent of veterans

who were participating in the family caregivers program at that time had a 70 percent or higher rating.

Final Rule, 85 Fed. Reg. at 46,248. Like the serviceconnected disability change, the VA believed adopting

a 70 percent disability requirement “would provide a

transparent and clearly defined standard that can be

consistently applied throughout VA.” Proposed Rule,

85 Fed. Reg. at 13,369.

Combined, these two changes decoupled the definition of “serious injury” from the definition of “in need

of personal care services.” Proposed Rule, 85 Fed. Reg.

at 13,369–70. Now, “serious injury” has a definition of

its own, rather than parroting the statutory language

defining “in need of personal care services.” The VA

noted how this tracks the statutory structure, which

lists “serious injury” and “in need of personal care

services” requirements as separate conditions for a

veteran to qualify as eligible. Final Rule, 85 Fed. Reg.

at 46,246 (citing 38 U.S.C. § 1720G(a)(2)(B)–(C)).

Again, the VA viewed this change as eliminating

inconsistent administration caused by the complexity

of conducting medical evaluations.

28a

We cannot say the VA’s definition of “serious injury”

is an unreasonable policy choice. The VA redefined

that phrase in an attempt to provide clarity, reduce

inequity, and streamline administration. Those are,

no doubt, reasonable policy goals. And Petitioners

have not persuasively argued that the VA’s definition

of “serious injury” is an unreasonable effort at

achieving those goals.

Instead, Petitioners argue the VA’s “serious injury”

definition is wholly unpersuasive and entitled to less

deference under Watt, 451 U.S. at 273. This time,

Petitioners have made the predicate showing necessary for Watt to apply: a conflict between the VA’s

current position and its initial position on the meaning

of “serious injury.” See id. But Petitioners overstate

Watt given the Supreme Court’s more recent precedent on changed interpretations.

“The Supreme Court has rejected the argument that

an agency’s interpretation is not entitled to deference

because it represents a sharp break with prior

interpretations of the statute in question.” Info. Tech.

& Applications Corp. v. United States, 316 F.3d 1312,

1322 (Fed. Cir. 2003) (internal quotation marks omitted).

Chevron itself involved a changed interpretation, 467

U.S. at 862, yet the Court deferred to the EPA’s

interpretation. That is not to say we should ignore the

VA’s history of inconsistent interpretations. See Good

Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993)

(“[T]he consistency of an agency’s position is a factor

in assessing the weight that position is due.”). So long

as the change is not “sudden and unexplained” and the

agency “take[s] account of legitimate reliance on prior

interpretation,” the “change is not invalidating.” See

Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742

(1996).

29a

The administrative record shows the VA made a

reasoned change that accounted for settled expectations. The VA explained how its prior definition, which

coupled the definition of “serious injury” and “in need

of personal care services,” led to administration

problems. Then, it set about resolving those problems

by changing its definition of “serious injury.” There

was ample explanation for this changed position, and

it was far from sudden. The change also accounted for

settled expectations. As the VA noted, 98 percent of

veterans who were eligible under the legacy program

had a disability rating of 70 percent or higher. Thus,

the VA’s change of opinion is “not invalidating.”

Smiley, 517 U.S. at 742.

Nor is the VA’s definition unreasonable because it

requires veterans to apply for disability compensation.

The statutory text requires the veteran’s “serious

injury” to have been “incurred or aggravated in the

line of duty in the active military, naval, air, or space

service.” 38 U.S.C. § 1720G(a)(2)(B). And the definition of “service-connected” is almost identical:

The term “service-connected” means, with respect

to disability or death, that such disability was

incurred or aggravated, or that the death resulted

from a disability incurred or aggravated, in line of

duty in the active military, naval, air, or space

service.

38 U.S.C. § 101(16). It is, thus, not unreasonable to

interpret this language as requiring service connection. Nor was it unreasonable for the VA to require

veterans to take advantage of the already-existing

system for evaluating service connection. And Petitioners

have offered no reason why a special processing system

for family caregivers program claims would not contribute to, rather than alleviate, claim processing delays.

30a

Finally, Petitioners claim the VA’s definition of

“serious injury” is inconsistent with other portions of

the Final Rule. They point to statements that family

caregiver benefits are “not designed to supplement or

replace the disability compensation received by the

veteran.” See Final Rule, 85 Fed. Reg. at 46,234. So

they claim family caregiver benefits cannot be contingent on a disability rating. But that conclusion does

not follow. Nothing about using disability rating as

one condition for awarding family caregiver benefits

makes those benefits a supplement to or a replacement

for disability compensation. The programs are distinct.

In sum, the VA’s interpretation of “serious injury” in

the statute is reasonable. The VA explained its decision to redefine that term, and it made a reasonable

policy decision in promulgating the new regulatory

definition. Accordingly, we are bound to accept the

VA’s definition of “serious injury.” Thus, we deny

Petitioners’ petition on this ground.

C. Inability to Perform

Petitioners’ third challenge is aimed at a portion of

the statutory requirements for a veteran to qualify as

an “eligible veteran.” A veteran must be “in need of

personal care services,” and there are four avenues

through which a veteran may meet that requirement.

38 U.S.C. § 1720G(a)(2)(C)(i)–(iv). The first avenue is

an “inability to perform one or more activities of daily

living[.]” Id. § 1720G(a)(2)(C)(i).

From 2011 through 2020, the regulatory scheme

defined “inability to perform an activity of daily living

(ADL)” as any one of the following:

(1) Inability to dress or undress oneself;

(2) Inability to bathe;

31a

(3) Inability to groom oneself in order to keep

oneself clean and presentable;

(4) Frequent need of adjustment of any special

prosthetic or orthopedic appliance that, by reason

of the particular disability, cannot be done without assistance (this does not include the adjustment

of appliances that nondisabled persons would be

unable to adjust without aid, such as supports,

belts, lacing at the back, etc.);

(5) Inability to toilet or attend to toileting without

assistance;

(6) Inability to feed oneself due to loss of coordination of upper extremities, extreme weakness,

inability to swallow, or the need for a non-oral

means of nutrition; or

(7) Difficulty with mobility (walking, going up

stairs, transferring from bed to chair, etc.).

38 C.F.R. § 71.15 (2015). But nothing in that definition

explained how frequent an “inability” was required for

a veteran to qualify as eligible. In 2020, the VA

amended its definition of “inability to perform an

activity of daily living” to clarify that point:

Inability to perform an activity of daily living

(ADL) means a veteran or servicemember requires

personal care services each time he or she completes one or more of the following:

(1) Dressing or undressing oneself;

(2) Bathing;

(3) Grooming oneself in order to keep oneself

clean and presentable;

(4) Adjusting any special prosthetic or orthopedic appliance, that by reason of the particular

32a

disability, cannot be done without assistance

(this does not include the adjustment of

appliances that nondisabled persons would be

unable to adjust without aid, such as supports,

belts, lacing at the back, etc.);

(5) Toileting or attending to toileting;

(6) Feeding oneself due to loss of coordination

of upper extremities, extreme weakness, inability

to swallow, or the need for a non-oral means of

nutrition; or

(7) Mobility (walking, going up stairs, transferring from bed to chair, etc.).

38 C.F.R. § 71.15 (second emphasis added). That is, a

veteran must be consistently unable to perform an

activity of daily living to qualify as eligible. An inability

that is intermittent or occasional will not suffice.

Petitioners challenge the VA’s interpretation of

“inability to perform.” They argue the VA’s requirement that the veteran have total inability for a single

activity of daily living conflicts with the statutory

language. They also argue, in the alternative, that the

VA’s interpretation is an unreasonable interpretation

of the statutory scheme. We do not agree.

1. Step One

Congress has not spoken to the interpretive question rasied in this challenge—the meaning of “inability

to perform” in § 1720G(a)(2)(C). The meaning of that

phrase, to some extent, is clear. But the statutory text

and structure do not speak to how often a veteran

must be unable to perform an activity of daily living.

There is a statutory gap, and we, therefore, must defer

to the VA’s regulations filling that gap.

33a

To have an “inability to perform” an activity of daily

living, a veteran must be wholly unable to complete

that activity. It cannot be that the veteran can

complete the task, but only with great effort or time.

The ordinary meaning of “inability” prevents such an

interpretation. See Wis. Cent. Ltd. v. United States,

138 S. Ct. 2067, 2070 (2018) (“[O]ur job is to interpret

the words consistent with their ordinary meaning at

the time Congress enacted the statute.”).

But the surrounding statutory language adds a

dimension that Congress has not addressed. The statute

requires an “inability to perform one or more activities

of daily living” for a veteran to qualify as eligible under

this avenue. 38 U.S.C. § 1720G(a)(2)(C)(i) (emphasis

added). By using the word daily, Congress required

the relevant activities to occur with some regularity.

See also 38 C.F.R. § 71.15 (promulgating list of

activities of daily living, each of which involves regular

conduct—like eating or bathing). While the word

inability requires the veteran be wholly unable to

complete the activity, it does not speak to how often

that inability must present. A veteran may be unable

to bathe all of the time, most of the time, or only some

of the time. It is not clear under the statutory text

what frequency is required. Nothing in the text,

structure, or purpose of the statute answers that

question.

Petitioners suggest the statutory text forecloses the

VA’s interpretation, which requires inability each time

the veteran attempts an activity, but their argument

is not persuasive. Petitioners focus on a single phrase—

”one or more”—for support. But the statute’s use of

that phrase in “inability to perform one or more

activities of daily living” provides no insight into how

pervasive an inability is required. It means only that,

34a

whatever inability is required, a veteran need only

show an inability for one or more activities of daily

living. This language does not undermine the VA’s

decision to focus on activities of daily living individually, rather than as a unit.

Nor does the VA’s interpretation lead to an absurd

result. See Nat’l Ass’n of Mfrs. v. Dep’t of Treasury,

10 F.4th 1279, 1288 (Fed. Cir. 2021) (invalidating

regulation at step one based on absurdity). To be

sure, the VA’s interpretation would prevent a veteran

who required assistance 99 percent of the time for

all activities of daily living from receiving benefits.

But this single hypothetical, at the very extreme of

possibility, does not render the VA’s interpretation

absurd. Cf. U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166,

179 (1980) (“[T]he task of classifying persons for . . .

benefits inevitably requires that some persons who

have an almost equally strong claim to favored

treatment be placed on different sides of the line[.]”)

(internal quotation marks omitted). And Petitioners

have not meaningfully challenged the VA’s finding

that the impact of this hypothetical will be minor. See

Final Rule, 85 Fed. Reg. at 46,234 (“We believe that if

a veteran or servicemember needs assistance with multiple ADLs, it is likely that at least one of those ADLs

requires assistance each time the ADL is completed.”).

Petitioners also suggest the VA lacked authority

to resolve the statutory silence or, at least, to resolve

that question by requiring inability each time a

veteran completes an activity of daily living. Pet’rs’ Br.

27. But Congress delegated to the VA authority to

administer the family caregivers program. 38 U.S.C.

§ 1720G(a)(2)(A). And that delegation comes with the

ability to promulgate regulations to fill gaps in the

statutory scheme. Morton v. Ruiz, 415 U.S. 199, 231

35a

(1974) (“The power of an administrative agency to administer a congressionally created and funded program

necessarily requires . . . the making of rules to fill any

gap left, implicitly or explicitly, by Congress.”).

Ultimately, Congress left a gap in the statute. It

required an “inability to perform one or more activities

of daily living,” but it did not speak to how often an

inability is required. The VA promulgated a regulation

answering that question, and we must defer to that

interpretation.

2. Step Two

The VA’s interpretation of “inability to perform”—

requiring permanent inability—is a permissible construction of the statute. It is a product of the VA’s

reasonable policy judgment, so we are bound to follow

the VA’s interpretation. See Brand X, 545 U.S. at 986

(discussing step two).

The VA interpreted “inability to perform one or more

activities of daily living” to clarify the eligibility

requirements for the family caregivers program and to

ease its administration of that program. See, e.g.,

Proposed Rule, 85 Fed. Reg. at 13,360–61. The VA also

noted how this definition supported its goal of focusing

the family caregivers program on those veterans who

have moderate to severe needs. See, e.g., id. at 13,360.

These are reasonable policy goals, see supra § II(A)(2),

and Petitioners have offered no persuasive arguments

for why the VA’s interpretation is not a reasonable

effort at accomplishing those goals.

Petitioners claim this rule should receive considerably less deference under Watt, 451 U.S. at 273. Yet

they fail to make the predicate showing necessary for

Watt to apply: an inconsistency between the VA’s

current and former interpretations. They claim the

36a

VA’s definition of “inability to perform one or more

activities of daily living” contradicts the prior regulatory framework, which they read to use pervasiveness

only in setting caregivers’ stipend levels. But

Petitioners misunderstand those regulations.

In 2015, the VA promulgated a rating scale for

determining the stipend amount provided to primary

caregivers. See 38 C.F.R. § 71.40(0(4) (2015). For each

activity of daily living, the VA assigned each veteran a

score from zero to four:

Score

Veteran’s Ability

Zero

completes

assistance

the

task/activity

without

One

requires minimal assistance (can complete

75 percent or more of the task without

supervision or assistance)

Two

requires

moderate

assistance

(can

complete 50 percent to 74 percent of the

task without assistance)

Three

requires

maximal

assistance

(can

complete 25 percent to 49 percent of the

task without assistance)

Four

requires total assistance (can complete

less than 25 percent of the task or is

unable to do the task without assistance)

See id. § 71.40(c)(4)(iii) (2015) (reformatted). The VA

then summed those scores and assigned primary

family caregivers a stipend amount based on that sum.

Id. § 71.40(c)(4)(iv)–(v) (2015). This framework does

not, as Petitioners suggest, address how often a

veteran requires assistance to complete an activity of

37a

daily living. It is focused on how much assistance—

minimal, moderate, maximal, or total—is needed for

each activity. Because the stipend schedule had nothing

to say about how often a veteran needed assistance, it

cannot conflict with the VA’s “each time” requirement.

Petitioners also claim the rule is unreasonable because

it excludes many veterans who deserve benefits and

because the VA could have adopted a less draconian

rule like needing assistance 50 or 70 percent of the

time—that is still clear and administrable. But this

argument does not undermine the reasonableness of

the VA’s regulation. In effect, Petitioners believe the

VA should have chosen a different rule. They would

prefer the VA to have set its bright-line at a lower

level. We cannot, however, set aside the VA’s reasonable interpretation of the statute simply because we

(or Petitioners) might prefer a different interpretation.

Deacero S.A.P.I. de C.V. v. United States, 996 F.3d

1283, 1295 (Fed. Cir. 2021) (“The agency’s construction need not be the only reasonable interpretation or

even the most reasonable interpretation.”). Congress

delegated to the VA the authority fill gaps in the statutory scheme. If the VA’s interpretation is reasonable,

it must be upheld.

To conclude, the VA’s interpretation of “inability to

perform one or more activities of daily living” is

reasonable. In such circumstances, we are bound to

adhere to the VA’s interpretation. So we deny the

Petitioners’ petition on this ground.

D. Need for Supervision,

Instruction

Protection,

or

Petitioners next challenge the VA’s interpretation of

two of the remaining avenues through which a veteran

may qualify as “in need of personal care services.” 38

38a

U.S.C. § 1720G(a)(2)(C). Those avenues are available

to veterans who need supervision, instruction, or

protection:

For purposes of this subsection, an eligible veteran

is any individual who—

(C) is in need of personal care services because

of . . .

(ii) a need for supervision or protection based

on symptoms or residuals of neurological or

other impairment or injury; [or]

(iii) a need for regular or extensive instruction

or supervision without which the ability of the

veteran to function in daily life would be

seriously impaired[.]

Id. Congress added the latter avenue, subsection (iii),

in the VA MISSION Act of 2018 in an effort to expand

benefits. After that Act, the VA promulgated a

regulatory definition aimed at implementing both

subsections (ii) and (iii):

Need for supervision, protection, or instruction

means an individual has a functional impairment

that directly impacts the individual’s ability to

maintain his or her personal safety on a daily

basis.

38 C.F.R. § 71.15.

Petitioners claim the VA’s regulation is inconsistent

with the statutory text, which creates two distinct

pathways that the VA has improperly combined into a

single definition. They also claim the VA’s interpretation is not reasonable. We agree the VA’s rule fails at

step one, and therefore, we need not reach step two.

39a

By requiring “supervision . . . on a daily basis,” the

VA’s interpretation conflicts with the statutory text.

Subsections (ii) and (iii) both relate to a veteran’s need

for supervision, but Congress used different terms

when describing that need. For subsection (ii), it required

the veteran be in need of “supervision or protection.”

But for subsection (iii), Congress required that a

veteran be in need of “regular or extensive . . . supervision.” Presumably, this change in phrasing carries

meaning. E.g., Sosa v. Alvarez–Machain, 542 U.S. 692,

711 n.9 (2004) (“[W]hen the legislature uses certain

language in one part of the statute and different

language in another, the court assumes different

meanings were intended.”). So the VA’s decision to

create a single frequency requirement for supervision

is inconsistent with the statutory language.

The VA’s interpretation further conflicts with the

statutory language by requiring “a functional impairment that directly impacts the individual’s ability to

maintain his or her personal safety.” See 38 C.F.R.

§ 71.15. To be sure, part of subsection (ii) relates to a

veteran’s need for “protection based on symptoms or

residuals of neurological or other impairment or

injury.” And by using the word protection, Congress

focused this portion of the statute on the personal

safety of veterans. But subsection (ii) also covers a

veteran’s need for “supervision . . . based on symptoms

or residuals” of an impairment or injury, and nothing

in that portion of the statute implicates personal

safety. Nor is subsection (iii) limited to personal safety

concerns. It only requires that, without instruction or

supervision, “the ability of the veteran to function in

daily life would be seriously impaired.” That phrase,

while it may include personal safety concerns, is

unambiguously broad enough to encompass impairments that do not implicate personal safety. Thus,

40a

some aspects of the statutory language provide benefits

to veterans who need supervision or instruction but

would not risk their personal safety in the absence of

that care. Accordingly, the VA’s personal safety

requirement is inconsistent with the statutory text.

To be clear, we do not hold the VA cannot

promulgate a regulation to account for both subsection

(ii) and subsection (iii). We see nothing in the statutory

text, structure, or purpose that forecloses such an

interpretation. But if the VA chooses to promulgate a

single regulatory definition, its definition must be

consistent with the text of both statutory provisions.

Because the current regulation does not meet that

requirement, we must set it aside at step one. We,

therefore, grant the petition on this ground.

E. Geographic Residence

Petitioners’ fifth challenge goes to the VA’s imposition of a geographic residence requirement. From 2011

until 2020, the VA had a practice of providing family

caregiver benefits only to caregivers who reside in the

United States. See Proposed Rule, 85 Fed. Reg. at

13,358. In overhauling the regulatory framework

implementing the family caregivers program, the VA

added regulatory language formalizing that practice:

This part regulates the provision of benefits under

the Program of Comprehensive Assistance for

Family Caregivers and the Program of General

Caregiver Support Services authorized by 38

U.S.C. 1720G. Persons eligible for such benefits

may be eligible for other VA benefits based on

other laws or other parts of this title. These

benefits are provided only to those individuals

residing in a State as that term is defined in 38

U.S.C. 101(20).

38 C.F.R. § 71.10(b).

41a

Petitioners challenge this requirement at both steps

of the Chevron framework. First, they claim the residency requirement is inconsistent with the statutory

language, which does not impose such a requirement.

Second, they argue that requirement is also an unreasonable interpretation of the statutory language. We

do not agree.

1. Step One

Congress has not spoken to the precise interpretive

question at issue in this challenge—whether a caregiver must reside within the United States to be

entitled to benefits. The statutory text is silent on that

point, and the statutory structure provides no additional clarity. There is, in short, a statutory gap.

To begin, we look to the text of the statute. Nothing

in § 1720G(a) compels or forecloses the VA from

imposing a geographic residency requirement. There

is no provision directed to residency, nor is there a

provision suggesting that the caregivers who reside

abroad are entitled to benefits. That is, the statutory

language is silent.

Petitioners claim the statutory guidelines for

caregiver stipends foreclose the VA’s interpretation,

but we do not agree. As described above, see supra

§ II(A)(1), the statute provides guidelines for setting

caregiver stipend amounts. One guideline relates to

the stipend afforded primary family caregivers:

The Secretary shall ensure, to the extent

practicable, . . . that the amount of the monthly

personal caregiver stipend . . . is not less than the

monthly amount a commercial home health care

entity would pay an individual in the geographic

area of the eligible veteran to provide equivalent

personal care services to the eligible veteran.

42a

Id. § 1720G(a)(3)(C)(ii) (emphasis added). To be sure,

the statute requires the VA to account for geographic

location when setting compensation. But it does

nothing to resolve the statutory silence here, which

relates to the eligibility for benefits not the amount of

benefits. Moreover, that Congress addressed geographic location in one provision (stipends) but chose

to remain silent elsewhere (entitlement) does not

prevent the VA from regulating to fill a statutory gap.

See Catawba Cnty., 571 F.3d at 36 (“[A] congressional

mandate in one section and silence in another often

suggests not a prohibition but simply a decision not to

mandate any solution in the second context, i.e., to

leave the question to agency discretion.”). No part of

the Caregiver Act suggests that silence was meant to

limit the VA’s authority—especially given Congress’

express delegation of authority to the VA. See 38

U.S.C. § 1720G(a).

For similar reasons, Congress’ creation of the foreign

medical program does not undermine the VA’s interpretation. That program affords the VA discretion

to provide certain medical benefits to veterans who

live abroad. See id. § 1724(b)–(c). That is, Congress

expressly addressed how veterans’ residency affects

their entitlement to certain medical benefits. But the

fact that Congress spoke in one place (the foreign

medical program), while remaining silent in another

(the family caregivers program), does not foreclose the

VA’s interpretation here. There is no reason to believe

that silence was a proscription given Congress’ express

delegation of authority to the VA. See Catawba Cnty.,

571 F.3d at 36 (discussing impact of silence); see also

38 U.S.C. § 1720G(a) (delegating authority).

Nor could the family caregivers program be administered through the foreign medical program. The foreign

43a

medical program allows the VA to provide “medical

care,” including “noninstitutional extended care services,”

to nonresident veterans. 38 U.S.C. § 1724; see also 38

U.S.C. § 1701(6)(E) (defining “medical care”). That

does not mean, however, that a caregiver can receive

family caregiver benefits through that program. The

programs are aimed at different populations and

provide different benefits.

In sum, Congress has not spoken to whether a

caregiver must reside within the United States to be

entitled to benefits. And it expressly delegated the VA

authority to establish the family caregivers program.

In such circumstances, we must defer to the VA’s

reasonable gap-filling regulations.

2. Step Two

The VA’s imposition of a geographic residency

requirement is a permissible construction of the

statute. It is a product of the VA’s reasonable policy

judgment, and it is not entitled to less deference at

step two. Thus, we defer to the VA’s interpretation. See

Brand X, 545 U.S. at 986 (discussing step two).

The VA promulgated the residency requirement to

formalize its long-standing practice of limiting benefits

to U.S.-based caregivers. Since passage of the Caregivers Act, the VA limited its administration to the

United States. It believed that “it [wa]s not currently

feasible for [the] VA to provide benefits [under the

Caregivers Act] outside of a State.” Proposed Rule, 85

Fed. Reg. at 13,358; accord Final Rule, 85 Fed. Reg. at

46,227. That belief was supported by the nature of the

benefits provided under the family caregivers program, like in-home visits and respite care. Those

benefits would be difficult to provide outside the

44a

United States, and the VA concluded the high costs

outweighed the benefits. Id.

We cannot say the VA made an unreasonable policy

choice limiting the family caregivers program to those

caregivers who reside in the United States. Much of

the family caregivers program involves oversight and

benefits that would be difficult to administer abroad.

Home health visits and respite care, for example,

would be difficult to administer in a foreign country.

See 38 U.S.C. § 1720G(a)(9)(c) (providing VA authority

to review directly the quality of personal care services

provided to the eligible veteran in the veteran’s

home); id. § 1720(a)(3)(B) (describing respite care).

And Petitioners have offered no persuasive arguments

undermining the reasonableness of the VA’s regulatory decision.

Petitioners claim this regulation is entitled to “less

deference than usual” because it does not relate to

the VA’s substantive expertise. Pet’rs’ Br. 51 (citing

Gonzales v. Oregon, 546 U.S. 243, 269 (2006); Kisor,

139 S. Ct. at 2419). They focus on how this is a

geographic requirement, and how the VA lacks

expertise in matters of geography. While the VA may

lack experience in matters of geography, Petitioners

ignore the underlying policies motivating the VA’s

interpretation. The VA promulgated its residency

requirement because of difficulties administering the

Caregivers Program abroad. Those difficulties, which

relate to how veterans’ benefits should be administered, fit squarely within the VA’s expertise. So the

geographic nature of this rule does not undermine our

obligation to defer to the VA’s reasonable interpretations.9

9

It is also not clear that a lack of substantive expertise

prevents Chevron deference, rather than Auer or Skidmore

45a

Petitioners also argue the VA’s interpretation is

entitled to less deference under Watt, 451 U.S. at 273,

but they have failed to show the requisite inconsistency. They claim the residency requirement is

inconsistent with the VA’s current definition of serious

injury. But that is not the concern Watt is aimed at

addressing. Watt is directed to agencies’ changed interpretations, i.e., when an agency’s “current interpretation

[is] in conflict with its initial position.” 451 U.S. at 273.

Petitioners identify no change in the VA’s position,

which has been consistent throughout its administration of the Caregivers program. Veterans outside the

United States have never received benefits.

Petitioners only posit an internal inconsistency in

the VA’s current regulations. Internal inconsistency

can render an interpretation unreasonable, arbitrary,

or capricious. See, e.g., Air Line Pilots Ass’n v. F.A.A.,

3 F.3d 449, 453 (D.C. Cir. 1993). But Petitioners have

failed to identify any internal inconsistency. Their

argument depends on the family caregivers program

being administered through the foreign medical

program—an argument we have already rejected.

Finally, Petitioners claim the VA’s definition is

unreasonable because the VA provides other programs

outside the United States. It is not, however, unreasonable for the VA to provide some programs abroad

while limiting the family and general caregivers

program to U.S.-based veterans. The VA found that it

was “not feasible for [it] to provide [those programs]

deference. See Gonzales, 546 U.S. 243, 269 (2006) (discussing

deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944));

Kisor, 139 S. Ct. at 2419 (discussing deference under Auer v.

Robbins, 519 U.S. 452 (1997)). As Justice Roberts’ concurrence in

Kisor notes, these doctrines have different concerns. Kisor, 139 S.

Ct. at 2424–25. We need not address that question here.

46a

outside of [the United States].” See Final Rule, 85 Fed.

Reg. at 46,227. And Petitioners have failed to show

that conclusion is unreasonable. Indeed, each of the

programs Petitioners cite recognize the VA’s discretion

to assess feasibility of administration abroad. See 38

C.F.R. §§ 17.35 (providing the VA discretion to provide

hospital services abroad), 21.130 (affording the VA

discretion to provide educational courses abroad when

the VA determines it is “in the best interest of the

veteran and the Federal Government”), 36.4405(b)(5)

(allowing VA to provide specially adapted housing

grants to be applied to houses outside the United

States if the VA “has determined that is reasonably

practicable”). So these provisions support the VA’s

ability to assess the feasibility of administering benefits outside the United States.

In conclusion, the VA’s interpretation is reasonable.

It is the product of a reasonable policy choice, weighing

the costs and benefits of administration outside the

United States. And Petitioners have failed to identify

any inconsistency within the current regulatory

framework or between the current framework and the

VA’s past interpretation. In such circumstances, we

must defer to the VA’s interpretation. Accordingly, we

deny the petition on this ground.

F. Monthly Stipend Rate

Petitioners’ sixth challenge focuses on the VA’s

schedule for stipend payments. Congress delegated

authority to set the level of stipend payments afforded

primary family caregivers:

The amount of the monthly personal caregiver

stipend provided under subparagraph (A)(ii)(V)

shall be determined in accordance with a schedule

established by the [VA] that specifies stipends

47a

based upon the amount and degree of personal

care services provided.

38 U.S.C. § 1720G(a)(3)(C)(i). But it restricted the

scope of the VA’s authority by setting a minimum

compensation level, id. § 1720G(a)(3)(C)(ii), and by

requiring the schedule account for certain factors, id.

§ 1720G(a)(3)(C)(i), (iii).

In 2015, the VA exercised its delegated authority

by promulgating a schedule for stipend amounts. 38

C.F.R. § 71.40 (2015). That schedule, described in

§ II(D)(2), assigned caregivers a stipend amount based

on how much care a veteran needed to complete his

activities of daily living. Id. For example, if the sum of

a veteran’s clinical rating scores was 21 or greater, his

caregiver was entitled to a stipend that approximated

40 hours of caregiver assistance. Thus, the VA would

multiply 40 hours by the caregiver’s “combined rate”

to arrive at the stipend amount. And it defined

“combined rate” as:

[T]he Bureau of Labor Statistics (BLS) hourly

wage rate for home health aides at the 75th

percentile in the eligible veteran’s geographic area

of residence, multiplied by the Consumer Price

Index for All Urban Consumers (CPI–U). The

combined rate will be determined for each geographic area on an annual basis. For each

geographic area, the combined rate will be the

higher of:

(1) The most recent BLS hourly wage rate for

home health aides at the 75th percentile in the

geographic area multiplied by the most recent

CPI–U; or

48a

(2) The combined rate applied for the geographic area in the previous year.

38 C.F.R. § 71.15 (2015).

In 2020, the VA amended its schedule for stipend

amounts. It removed reliance on the clinical rating

scores and, instead, set stipend amounts based on

whether the veteran is “unable to self-sustain in the

community.” If so, the veteran’s caregiver is entitled to

a full stipend amount; and if not, the veteran’s

caregiver is only entitled to 62.5 percent of the full

stipend amount. 38 C.F.R. 71.40(c)(4)(i). Rather than

calculating the full stipend amount based on a

“combined rate,” the VA pivoted to using a “monthly

stipend rate.” And it defined that term:

[T]he Office of Personnel Management (OPM)

General Schedule (GS) Annual Rate for grade 4,

step 1, based on the locality pay area in which the

eligible veteran resides, divided by 12.

38 C.F.R. § 71.15.

Petitioners challenge the VA’s definition of “monthly

stipend rate.” They claim that definition, by incorporating the GS scale, is inconsistent with the statutory

framework. They also argue it is an unreasonable

interpretation of the statute. We do not agree.

1. Step One

Congress expressly left a statutory gap for the VA

to fill, the schedule for stipend payments under

the family caregivers program. And Petitioners have

failed to show the VA’s decision to rely on the GS scale

when filling that gap is inconsistent with the statutory

text, structure, or purpose.

Petitioners claim the VA’s reliance on the GS scale

is inconsistent with 38 U.S.C. § 1720G(a)(3)(C)(ii), but

49a

we do not agree. That statutory section requires the

VA ensure, “to the extent practicable,” stipend amounts

are “not less than the monthly amount a commercial

home health care entity would pay an individual in the

geographic area of the eligible veteran to provide equivalent personal care services to the eligible veteran.” Id.

Contrary to Petitioners’ view, nothing about this

statute requires the VA to use a commercial rate. It

just sets a minimum stipend amount the VA must

strive to achieve. Congress left it to the VA to

determine how to accomplish that directive, whether

by adopting a commercial rate or adopting some other

rate that is at least as great as the commercial rate.

The statute is, in other words, silent.

Petitioners also claim Congress’ choice to use the GS

scale in other circumstances, but not for the family

caregivers program, forecloses the VA’s interpretation.

But Congress’ mandate in one section and silence in

the family caregivers program does not indicate a

proscription. See Catawba Cnty., 571 F.3d at 36. That

is especially true when, as here, Congress expressly

provided the VA authority to fill this statutory gap.

The statutory silence is best interpreted as a delegation to the VA.

Finally, nothing about the history or purpose of

the Caregiver Act precludes the VA’s interpretation.

Petitioners point to how the statutory text has not

changed in 10 years, but that just shows that Congress

has left a statutory gap for 10 years. It is not evidence

of Congress’ unambiguous intent.

In sum, Congress left a statutory gap. It delegated

to the VA authority to promulgate a schedule for

stipend amounts, provided the VA’s schedule met certain

statutory requirements. And the VA promulgated a

schedule consistent with those requirements, using

50a

the GS scale to set stipend amounts. Thus, we must

defer to that regulation at step two.

2. Step Two

The VA’s use of the GS scale is a permissible

construction of the statute. It is a product of the VA’s

reasonable policy judgment, which we are bound to

follow. See Brand X, 545 U.S. at 986 (discussing step

two).

The VA relied on the GS scale in setting stipend

amounts because it was “an appropriate reference

point.” Proposed Rule, 85 Fed. Reg. at 13,382. The GS

scale “historically tracked closely with median wage

growth for home health aides” and “accounts for

variations in cost-ofliving across the [United States.]”

Id. Also, by relying on a single grade and step, the VA

“ensure[d] more consistent, transparent, and predictable stipend payments” for primary family caregivers.

Id. To ensure the GS wage rate tracks private sector

wages for home health aides, the VA went through an

extensive analysis. Id. at 13,382–83. And it artificially

inflated the selected GS grade and step to ensure

family caregivers receive a large enough stipend. Id.

at 13,383.

Also, the VA viewed its new definition as remedying

many of the problems associated with reliance on the

BLS hourly wage rate. Id. at 13,382. The BLS rate

required manual calculations, while the GS scale

allowed automation. The VA noted how using the GS

scale would also cause less fluctuation in stipend

amounts and would ensure greater transparency than

reliance on the BLS hourly wage rate. Id.

We cannot say this was an unreasonable policy

decision. It is reasonable for the VA to prefer a clear,

more easily administrable metric for primary family

51a

caregiver stipends. And the VA went to great lengths

to ensure that this stipend amount was at least

equivalent to, if not greater than, the annual salary

paid to a home health aide in the commercial sector.

And Petitioners have offered no persuasive arguments

undermining the VA’s policy decision.

Like for their other challenges, Petitioners argue

the regulation is wholly unpersuasive and entitled to

less deference under Watt, 451 U.S. at 273. Here,

Petitioners have made the predicate showing necessary for Watt to apply: a conflict between the VA’s

current position and its initial position. See id. Before,

the VA relied on the BLS hourly wage rage, and now,

it relies on the GS scale. But the VA provided a

reasoned, reasonable explanation for why it adopted

that change. See supra § II(B)(2) (discussing how Watt

and subsequent Supreme Court cases allow the VA to

change its policy decisions). And it accounted for

settled expectations, providing an adjustment period.

See 38 C.F.R. § 71.40(c)(4). In such circumstances, the

VA’s decision to change its stipend calculation formula

does not invalidate the VA’s exercise of its regulatory

authority.

Ultimately, the VA’s interpretation is a permissible

construction of the statute. Congress left a gap, and

the VA reasonably filled that gap by promulgating a

schedule for stipends. In such circumstances, we are

bound to accept the VA’s statutory interpretation.

Accordingly, we deny the petition on this ground.

G. Unable to Self-Sustain

Petitioners’ final challenge is to the VA’s standard

for providing a primary family caregiver full stipend

benefits: that the veteran is “unable to self-sustain

in the community.” If the veteran is unable to self-

52a

sustain, his primary family caregiver is entitled to

the maximum stipend amount. If not, the veteran’s

primary family caregiver is entitled to only 62.5

percent of the maximum stipend amount. The VA’s

definition of that phrase turns on a veteran’s need for

personal care services:

Unable to self-sustain in the community means that

an eligible veteran:

(1) Requires personal care services each time he

or she completes three or more of the seven

activities of daily living (ADL) listed in the

definition of an inability to perform an activity of

daily living in this section, and is fully dependent

on a caregiver to complete such ADLs; or

(2) Has a need for supervision, protection, or

instruction on a continuous basis.

38 C.F.R. § 71.15.

Petitioners challenge this definition as violating

both steps of the Chevron inquiry. First, they claim

this definition conflicts with various parts of the

statute. Second, they claim the VA’s interpretation is

entitled to less deference and is an unreasonable

interpretation of the statute. We do not agree.10

1. Step One

Congress expressly left a statutory gap for the VA to

fill: the schedule for stipend payments under the

family caregivers program. See 38 U.S.C. § 1720G(a)(3).

And Petitioners have failed to show the VA’s decision

to establish a two-tiered framework for benefits based

10

Because Petitioners lack standing to challenge the threeor-more requirement, see supra § I, we do not address their

arguments on that front.

53a

on its definition of “unable to self-sustain in the

community” conflicts with the statute. Accordingly, we

cannot resolve this question at step one.

The VA’s stipend schedule takes into account the

required statutory factors. Congress imposed certain

limits on the VA’s discretion to set the primary family

caregivers’ stipend amounts:

(i) The amount of the monthly personal caregiver

stipend provided . . . shall be determined in

accordance with a schedule established by the

Secretary that specifies stipends based upon the

amount and degree of personal care services

provided. . . .

(iii) In determining the amount and degree of

personal care services . . . with respect to an

eligible veteran whose need for personal care

services is based in whole or in part on a need for

supervision or protection . . . or regular instruction

or supervision . . . , the Secretary shall take into

account the following:

(I) The assessment by the family caregiver of

the needs and limitations of the veteran[;]

(II) The extent to which the veteran can function safely and independently in the absence of

such supervision, protection, or instruction[;

and11]

11

This provision does not use conjunctive (“and”) or disjunctive

(“or”) language, but context makes clear the conjunctive applies.

These categories are not different avenues for reaching the same

outcome, like the paths for a veteran to be eligible. See supra at

note 6 (discussing § 1720G(d)(4)). They are separate considerations that supplement one another. And there is no other

54a

(III) The amount of time required for the family

caregiver to provide such supervision, protection, or instruction to the veteran.

38 U.S.C. § 1720G(a)(3)(C). And the definition of

“unable to self-sustain” accounts for these factors. It

looks to whether a veteran needs assistance “on a

continuous basis,” which accounts for the extent of

assistance required, see id. § 1720G(a)(3)(C)(ii), and

the time required to provide assistance, see id.

§ 1720G(a)(3)(C)(iii). The VA has, moreover, indicated

that its determination of continuous need will account

for the family caregiver’s assessment. Final Rule, 85

Fed. Reg. at 46,264; Proposed Rule, 85 Fed. Reg. at

13,379.

The VA’s standard for “on a continuous basis” is also

consistent with the statutory text. The VA described

that phrase as meaning “a regular, consistent, and

prevalent need.” See Final Rule, 85 Fed. Reg. at

46,273. And it indicated that “a continuous basis” is

greater than a daily need. Proposed Rule, 85 Fed. Reg.

at 13,384. Petitioners have failed to identify any text

that conflicts with this requirement, instead arguing

nothing in the text supports the continuous basis

language. But that argument just identifies silence in

the statutory scheme, and the VA has authority to fill

the statutory silence with a reasonable regulation.

Petitioners also suggest that flaws in the VA’s

definition of “need for supervision, protection, or

instruction” undermine the VA’s stipend schedule. But

nothing in that schedule relies on the impermissible

portions of the VA’s “need for supervision, protection,

or instruction” definition. We set aside that definition

provision using the disjunctive or conjunctive to describe these

considerations. Contra id.

55a

because its “personal safety” and “daily basis” requirements conflict with the statutory text. And neither of

those requirements is incorporated in the VA’s definition of “unable to self-sustain in the community.” To

be sure, like the VA’s definition of “need for supervision, protection, or instruction,” its definition of

“unable to self-sustain in the community” combines

two statutory subsections into a single regulatory

definition. But we see no problem with that under the

statutory text.

Ultimately, Congress expressly left a statutory gap.

It delegated the VA authority to promulgate a schedule

for stipend amounts, provided the VA’s schedule met

certain statutory requirements. And the VA promulgated

a schedule that is consistent with those requirements.

Thus, we must defer to that regulation at step two.

2. Step Two

The VA’s reliance on, and definition of, a veteran

being “unable to self-sustain in the community” is a

permissible construction of the statute. It is a product

of the VA’s reasonable policy judgment and is entitled

to deference at step two. Thus, we are bound to follow

the VA’s interpretation. See Brand X, 545 U.S. at 986

(discussing step two).

The VA altered its stipend schedule because it found

“that utilization of the three tiers set forth in the

[prior] regulations ha[d] resulted in inconsistent

assignment of [the] ‘amount and degree of personal

care services provided.’” Proposed Rule, 85 Fed. Reg.

at 13,383. The prior regulatory framework lacked

“clear thresholds that” could be “easily understood and

consistently applied,” which “contributed to an emphasis on reassessment to ensure appropriate stipend tier

assignment.” Id. So the VA chose to employ a two-

56a

tiered framework with a clear delineation between the

high and low tiers. Id.; see also Final Rule, 85 Fed.

Reg. at 46,271. And it delineated between those tiers

using its definition of “unable to self-sustain in the

community,” which accounts for the statutory requirements. Proposed Rule, 85 Fed. Reg. at 13,383–84. It

believed that definition would provide a clear distinction between those veterans with moderate needs and

those veterans with severe needs. Id.

We cannot say this was an unreasonable policy

choice. The VA experienced difficulty in administering

the family caregivers program, so it altered its regulations to ease those difficulties. Providing clear administrable rules is a reasonable policy goal. And Petitioners

have not persuasively argued the VA’s regulation is an

unreasonable effort at achieving that goal.

They claim the VA’s definition of “unable to selfsustain in the community” is unreasonably high. That

is, the VA should not have required a continuous need

for a veteran’s caregiver to be entitled to the full

stipend amount. But Petitioners offer no reason why

this regulation is unreasonable, and we cannot set

aside a regulation simply because Petitioner would

have preferred a lower bar. See Deacero, 996 F.3d at

1295.

Petitioners also argue the VA’s focus on moderately

to severely injured veterans does not comport with

the statutory framework. But it was reasonable for the

VA to consider focusing the family caregivers program

on moderately to severely injured veterans, as such

a focus finds support in the statute. See 38 U.S.C.

§ 1720G(a)(2) (requiring serious injury). It was also

reasonable, given the VA’s focus on those veterans,

for the VA to establish a two-tiered framework aimed

at distinguishing moderately injured veterans from

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severely injured veterans. Petitioners have not provided any persuasive arguments undermining this

policy decision.

Petitioners finally argue the VA’s stipend schedule

is wholly unpersuasive and entitled to less deference

under Watt, 451 U.S. at 273. Like with their other

challenge to the stipend amounts, Petitioners have

made the predicate showing necessary for Watt to

apply. The VA’s current stipend calculation system is

different from its former system. But the VA provided

a reasoned, reasonable explanation for why it adopted

that change. See supra § II(B)(2) (discussing how Watt

and subsequent Supreme Court cases allow the VA

to change its policy decisions). And it accounted for

settled expectations, providing an adjustment period.

See 38 C.F.R. § 71.40(c)(4). In such circumstances, the

VA’s decision to change its stipend calculation formula

does not render the VA’s exercise of its regulatory

authority unreasonable.

All told, the VA made a reasonable policy choice. It

promulgated the two-tiered stipend framework in an

effort to ease administration of benefits. And though

that framework conflicts with the VA’s prior framework, it is still entitled to Chevron deference. Applying

that deference, we conclude the VA reasonably filled a

statutory gap. Accordingly, we are obligated to adopt

the VA’s interpretation. We therefore deny the petition

as to this ground.

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CONCLUSION

For all the foregoing reasons, Petitioners’ petition

for review of the Final Rule is

DISMISSED IN PART, GRANTED IN PART,

AND DENIED IN PART

COSTS

No costs.

59a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

————

2021-1378

————

VETERAN WARRIORS, INC., ANDREW D. SHEETS,

KRISTIE SHEETS,

v.

Petitioners

SECRETARY OF VETERANS AFFAIRS,

Respondent

————

Petition for review pursuant to

38 U.S.C. Section 502.

————

JUDGMENT

THIS CAUSE having been considered, it is

ORDERED AND ADJUDGED:

DISMISSED IN PART, GRANTED IN PART, AND

DENIED IN PART

March 25, 2022

Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

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APPENDIX C

NOTE: This order is nonprecedential.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

————

2021-1378

————

VETERAN WARRIORS, INC., ANDREW D. SHEETS,

KRISTIE SHEETS,

v.

Petitioners

SECRETARY OF VETERANS AFFAIRS,

Respondent

————

Petition for review pursuant to

38 U.S.C. Section 502.

————

ON PETITION FOR PANEL REHEARING

AND REHEARING EN BANC

————

Before MOORE, Chief Judge, NEWMAN, LOURIE, DYK,

PROST, REYNA, TARANTO, CHEN, HUGHES, STOLL,

CUNNINGHAM, and STARK, Circuit Judges.

PER CURIAM.

ORDER

Veteran Warriors, Inc., Andrew D. Sheets, and Kristie

Sheets filed a combined petition for panel rehearing

and rehearing en banc. The petition was referred to

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the panel that heard the appeal, and thereafter the

petition for re-hearing en banc was referred to the

circuit judges who are in regular active service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue June 24, 2022.

June 17, 2022

Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

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APPENDIX D

38 U.S.C.A. § 1720G

§ 1720G. Assistance and support services for

caregivers

(a) Program of comprehensive assistance for family

caregivers.–(1)(A) The Secretary shall establish a program of comprehensive assistance for family caregivers

of eligible veterans.

(B) The Secretary shall only provide support under

the program required by subparagraph (A) to a

family caregiver of an eligible veteran if the

Secretary determines it is in the best interest of

the eligible veteran to do so.

(2) For purposes of this subsection, an eligible

veteran is any individual who–

(A) is a veteran or member of the Armed Forces

undergoing medical discharge from the Armed

Forces;

(B) for assistance provided under this subsection–

(i) before the date on which the Secretary

submits to Congress a certification that the

Department has fully implemented the information technology system required by section

162(a) of the Caring for Our Veterans Act of

2018, has a serious injury (including traumatic

brain injury, psychological trauma, or other

mental disorder) incurred or aggravated in the

line of duty in the active military, naval, air, or

space service on or after September 11, 2001;

(ii) during the 2-year period beginning on the

date on which the Secretary submitted to

Congress the certification described in clause

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(i), has a serious injury (including traumatic

brain injury, psychological trauma, or other

mental disorder) incurred or aggravated in the

line of duty in the active military, naval, air, or

space service–

(I) on or before May 7, 1975; or

(II) on or after September 11, 2001; or

(iii) after the date that is 2 years after the date

on which the Secretary submits to Congress the

certification described in clause (i), has a serious

injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred

or aggravated in the line of duty in the active

military, naval, air, or space service; and

(C) is in need of personal care services because of–

(i) an inability to perform one or more activities

of daily living;

(ii) a need for supervision or protection based

on symptoms or residuals of neurological or

other impairment or injury;

(iii) a need for regular or extensive instruction

or supervision without which the ability of the

veteran to function in daily life would be

seriously impaired; or

(iv) such other matters as the Secretary

considers appropriate.

(3)(A) As part of the program required by paragraph

(1), the Secretary shall provide to family caregivers

of eligible veterans the following assistance:

(i) To each family caregiver who is approved as

a provider of personal care services for an

eligible veteran under paragraph (6)–

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(I) such instruction, preparation, and training as the Secretary considers appropriate for

the family caregiver to provide personal care

services to the eligible veteran;

(II) ongoing technical support consisting of

information and assistance to address, in a

timely manner, the routine, emergency, and

specialized caregiving needs of the family

caregiver in providing personal care services

to the eligible veteran;

(III) counseling; and

(IV) lodging and subsistence under section

111(e) of this title.

(ii) To each family caregiver who is designated

as the primary provider of personal care services for an eligible veteran under paragraph (7)–

(I) the assistance described in clause (i);

(II) such mental health services as the

Secretary determines appropriate;

(III) respite care of not less than 30 days

annually, including 24-hour per day care of

the veteran commensurate with the care

provided by the family caregiver to permit

extended respite;

(IV) medical care under section 1781 of this

title;

(V) a monthly personal caregiver stipend;

and

(VI) through the use of contracts with, or the

provision of grants to, public or private

entities–

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(aa) financial planning services relating to

the needs of injured veterans and their

caregivers; and

(bb) legal services, including legal advice

and consultation, relating to the needs of

injured veterans and their caregivers.

(B) Respite care provided under subparagraph

(A)(ii)(III) shall be medically and age-appropriate

and include in-home care.

(C)(i) The amount of the monthly personal

caregiver stipend provided under subparagraph

(A)(ii)(V) shall be determined in accordance with

a schedule established by the Secretary that

specifies stipends based upon the amount and

degree of personal care services provided.

(ii) The Secretary shall ensure, to the extent

practicable, that the schedule required by

clause (i) specifies that the amount of the

monthly personal caregiver stipend provided to

a primary provider of personal care services for

the provision of personal care services to an

eligible veteran is not less than the monthly

amount a commercial home health care entity

would pay an individual in the geographic area

of the eligible veteran to provide equivalent

personal care services to the eligible veteran.

(iii) In determining the amount and degree of

personal care services provided under clause (i)

with respect to an eligible veteran whose need

for personal care services is based in whole or in

part on a need for supervision or protection

under paragraph (2)(C)(ii) or regular instruction or supervision under paragraph (2)(C)(iii),

66a

the Secretary shall take into account the

following:

(I) The assessment by the family caregiver of

the needs and limitations of the veteran.

(II) The extent to which the veteran can

function safely and independently in the

absence of such supervision, protection, or

instruction.

(III) The amount of time required for the

family caregiver to provide such supervision,

protection, or instruction to the veteran.

(iv) If personal care services are not available

from a commercial home health entity in the

geographic area of an eligible veteran, the

amount of the monthly personal caregiver

stipend payable under the schedule required by

clause (i) with respect to the eligible veteran

shall be determined by taking into consideration the costs of commercial providers of

personal care services in providing personal

care services in geographic areas other than the

geographic area of the eligible veteran with

similar costs of living.

(D) In providing instruction, preparation, and

training under subparagraph (A)(i)(I) and technical support under subparagraph (A)(i)(II) to

each family caregiver who is approved as a provider of personal care services for an eligible

veteran under paragraph (6), the Secretary shall

periodically evaluate the needs of the eligible

veteran and the skills of the family caregiver of

such veteran to determine if additional instruction, preparation, training, or technical support

under those subparagraphs is necessary.

67a

(4) An eligible veteran and a family member of the

eligible veteran seeking to participate in the program required by paragraph (1) shall jointly submit

to the Secretary an application therefor in such form

and in such manner as the Secretary considers

appropriate.

(5) For each application submitted jointly by an

eligible veteran and family member, the Secretary

shall evaluate (in collaboration with the primary

care team for the eligible veteran to the maximum

extent practicable)–

(A) the eligible veteran–

(i) to identify the personal care services required

by the eligible veteran; and

(ii) to determine whether such requirements

could be significantly or substantially satisfied

through the provision of personal care services

from a family member; and

(B) the family member to determine the amount

of instruction, preparation, and training, if any,

the family member requires to provide the personal care services required by the eligible veteran–

(i) as a provider of personal care services for the

eligible veteran; and

(ii) as the primary provider of personal care

services for the eligible veteran.

(6)(A) The Secretary shall provide each family

member of an eligible veteran who makes a joint

application under paragraph (4) the instruction,

preparation, and training determined to be required

by such family member under paragraph (5)(B).

68a

(B) Upon the successful completion by a family

member of an eligible veteran of instruction,

preparation, and training under subparagraph

(A), the Secretary shall approve the family

member as a provider of personal care services for

the eligible veteran.

(C) The Secretary shall, subject to regulations the

Secretary shall prescribe, provide for necessary

travel, lodging, and per diem expenses incurred

by a family member of an eligible veteran in

undergoing instruction, preparation, and training

under subparagraph (A).

(D) If the participation of a family member of an

eligible veteran in instruction, preparation, and

training under subparagraph (A) would interfere

with the provision of personal care services to the

eligible veteran, the Secretary shall, subject to

regulations as the Secretary shall prescribe and in

consultation with the veteran, provide respite

care to the eligible veteran during the provision of

such instruction, preparation, and training to the

family member so that the family member can

participate in such instruction, preparation, and

training without interfering with the provision of

such services to the eligible veteran.

(7)(A) For each eligible veteran with at least one

family member who is described by subparagraph

(B), the Secretary shall designate one family member

of such eligible veteran as the primary provider of

personal care services for such eligible veteran.

(B) A primary provider of personal care services

designated for an eligible veteran under subparagraph (A) shall be selected from among family

members of the eligible veteran who–

69a

(i) are approved under paragraph (6) as a

provider of personal care services for the eligible

veteran;

(ii) elect to provide the personal care services to

the eligible veteran that the Secretary determines the eligible veteran requires under

paragraph (5)(A)(i);

(iii) have the consent of the eligible veteran to

be the primary provider of personal care services for the eligible veteran; and

(iv) are considered by the Secretary as competent to be the primary provider of personal care

services for the eligible veteran.

(C) An eligible veteran receiving personal care

services from a family member designated as the

primary provider of personal care services for

the eligible veteran under subparagraph (A) may,

in accordance with procedures the Secretary

shall establish for such purposes, revoke consent

with respect to such family member under

subparagraph (B)(iii).

(D) If a family member designated as the primary

provider of personal care services for an eligible

veteran under subparagraph (A) subsequently

fails to meet any requirement set forth in

subparagraph (B), the Secretary–

(i) shall immediately revoke the family member’s

designation under subparagraph (A); and

(ii) may designate, in consultation with the

eligible veteran, a new primary provider of

personal care services for the eligible veteran

under such subparagraph.

70a

(E) The Secretary shall take such actions as may

be necessary to ensure that the revocation of a

designation under subparagraph (A) with respect

to an eligible veteran does not interfere with the

provision of personal care services required by the

eligible veteran.

(8) If an eligible veteran lacks the capacity to make

a decision under this subsection, the Secretary may,

in accordance with regulations and policies of the

Department regarding appointment of guardians or

the use of powers of attorney, appoint a surrogate

for the eligible veteran who may make decisions and

take action under this subsection on behalf of the

eligible veteran.

(9)(A) The Secretary shall monitor the well-being of

each eligible veteran receiving personal care services

under the program required by paragraph (1).

(B) The Secretary shall document each finding

the Secretary considers pertinent to the appropriate delivery of personal care services to an eligible

veteran under the program.

(C) The Secretary shall establish procedures to

ensure appropriate follow-up regarding findings

described in subparagraph (B). Such procedures

may include the following:

(i) Visiting an eligible veteran in the eligible

veteran’s home to review directly the quality of

personal care services provided to the eligible

veteran.

(ii) Taking such corrective action with respect

to the findings of any review of the quality of

personal care services provided an eligible

71a

veteran as the Secretary considers appropriate,

which may include–

(I) providing additional training to a family

caregiver; and

(II) suspending or revoking the approval of a

family caregiver under paragraph (6) or the

designation of a family caregiver under

paragraph (7).

(10) The Secretary shall carry out outreach to

inform eligible veterans and family members of

eligible veterans of the program required by

paragraph (1) and the benefits of participating in

the program.

(11)(A) In providing assistance under this subsection to family caregivers of eligible veterans, the

Secretary may enter into contracts, provider agreements, and memoranda of understanding with

Federal agencies, States, and private, nonprofit, and

other entities to provide such assistance to such

family caregivers.

(B) The Secretary may provide assistance under

this paragraph only if such assistance is

reasonably accessible to the family caregiver and

is substantially equivalent or better in quality to

similar services provided by the Department.

(C) The Secretary may provide fair compensation

to Federal agencies, States, and other entities

that provide assistance under this paragraph.

(12)(A) The Secretary shall notify the individuals

described in subparagraph (C) regarding decisions

affecting the furnishing of assistance under this

subsection using standardized letters, as the Secretary

72a

determines such notifications and letters to be

appropriate.

(B) A notification provided under subparagraph

(A) shall include the elements required for notices

of decisions under section 5104(b) of this title to

the extent that those elements apply to such

notification, unless, not later than 60 days after

the date of the enactment of the Transparency and

Effective Accountability Measures for Veteran

Caregivers Act, the Secretary determines that it

would not be feasible to include such elements in

such notifications and submits to the Committee

on Veterans’ Affairs of the Senate and the

Committee on Veterans’ Affairs of the House of

Representatives a report setting forth the reasons

for such determination.

(C) The individuals described in this subparagraph shall include–

(i) an individual who submits an application for

the program established under paragraph (1);

(ii) an individual determined by the Secretary

to be an eligible veteran pursuant to such an

application; and

(iii) a family caregiver of an eligible veteran

who is–

(I) approved as a provider of personal care

services under paragraph (6)(B); or

(II) designated as a primary provider of

personal care services under paragraph

(7)(A).

(13)(A) If the Secretary determines that a veteran

receiving services under the program established

under paragraph (1) is no longer eligible for such

73a

program solely because of improvement in the

condition of the veteran–

(i) the effective date of discharge of the veteran

from the program shall be not earlier than the

date that is 60 days after the date on which the

Secretary provides notice of such lack of eligibility under paragraph (12)(A) to the relevant

individuals described in paragraph (12)(C); and

(ii) the Secretary shall extend benefits under

the program established under paragraph (1)

for a family caregiver of the veteran described

in paragraph (12)(C)(iii), including stipends

under paragraph (3)(A)(ii)(V), if such an extension is determined appropriate by the Secretary,

for a 90-day period following discharge of the

veteran from the program.

(B) This paragraph shall not be construed to limit

the authority of the Secretary–

(i) to prescribe regulations addressing other

bases for–

(I) the discharge of a veteran from the

program established under paragraph (1); or

(II) the revocation of the designation of a

family caregiver of a veteran as a primary

provider of personal care services under

paragraph (7)(A); or

(ii) to provide advance notice and extended

benefits under the program, as appropriate, if

another basis for discharge of a veteran described

in subclause (I) of clause (i) or revocation of a

designation described in subclause (II) of such

clause applies.

74a

(b) Program of general caregiver support services.–(1)

The Secretary shall establish a program of support

services for caregivers of covered veterans who are

enrolled in the health care system established under

section 1705(a) of this title (including caregivers who

do not reside with such veterans).

(2) For purposes of this subsection, a covered

veteran is any individual who needs personal care

services because of–

(A) an inability to perform one or more activities

of daily living;

(B) a need for supervision or protection based on

symptoms or residuals of neurological or other

impairment or injury; or

(C) such other matters as the Secretary shall

specify.

(3)(A) The support services furnished to caregivers

of covered veterans under the program required by

paragraph (1) shall include the following:

(i) Services regarding the administering of

personal care services, which, subject to

subparagraph (B), shall include–

(I) educational sessions made available both

in person and on an Internet website;

(II) use of telehealth and other available

technologies; and

(III) teaching techniques, strategies, and

skills for caring for a disabled veteran;

(ii) Counseling and other services under section

1782 of this title.

75a

(iii) Respite care under section 1720B of this

title that is medically and age appropriate for

the veteran (including 24-hour per day in-home

care).

(iv) Information concerning the supportive

services available to caregivers under this subsection and other public, private, and nonprofit

agencies that offer support to caregivers.

(B) If the Secretary certifies to the Committees on

Veterans’ Affairs of the Senate and the House of

Representatives that funding available for a fiscal

year is insufficient to fund the provision of

services specified in one or more subclauses of

subparagraph (A)(i), the Secretary shall not be

required under subparagraph (A) to provide the

services so specified in the certification during the

period beginning on the date that is 180 days after

the date the certification is received by the

Committees and ending on the last day of the

fiscal year.

(4) In providing information under paragraph

(3)(A)(iv), the Secretary shall collaborate with the

Assistant Secretary for Aging of the Department of

Health and Human Services in order to provide

caregivers access to aging and disability resource

centers under the Administration on Aging of the

Department of Health and Human Services.

(5) In carrying out the program required by

paragraph (1), the Secretary shall conduct outreach

to inform covered veterans and caregivers of covered

veterans about the program. The outreach shall

include an emphasis on covered veterans and caregivers of covered veterans living in rural areas.

76a

(c) Construction.–(1) A decision by the Secretary

under this section affecting the furnishing of assistance or support shall be considered a medical

determination.

(2) Nothing in this section shall be construed to

create–

(A) an employment relationship between the

Secretary and an individual in receipt of

assistance or support under this section; or

(B) any entitlement to any assistance or support

provided under this section.

(d) Definitions.–In this section:

(1) The term “caregiver”, with respect to an eligible

veteran under subsection (a) or a covered veteran

under subsection (b), means an individual who

provides personal care services to the veteran.

(2) The term “family caregiver”, with respect to an

eligible veteran under subsection (a), means a

family member who is a caregiver of the veteran.

(3) The term “family member”, with respect to an

eligible veteran under subsection (a), means an

individual who–

(A) is a member of the family of the veteran,

including–

(i) a parent;

(ii) a spouse;

(iii) a child;

(iv) a step-family member; and

(v) an extended family member; or

77a

(B) lives with the veteran but is not a member of

the family of the veteran.

(4) The term “personal care services,” with respect

to an eligible veteran under subsection (a) or a

covered veteran under subsection (b), means

services that provide the veteran the following:

(A) Assistance with one or more activities of daily

living.

(B) Supervision or protection based on symptoms

or residuals of neurological or other impairment

or injury.

(C) Regular or extensive instruction or supervision

without which the ability of the veteran to

function in daily life would be seriously impaired.

(D) Any other non-institutional extended care (as

such term is used in section 1701(6)(E) of this

title).