Amicus Curiae Brief — Julien P. Champagne, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs

No. 25-482

In the

Supreme Court of the United States

JULIEN P. CHAMPAGNE,

Petitioner,

v.

DOUGLAS A. COLLINS, SECRETARY OF

VETERANS AFFAIRS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Federal Circuit

BRIEF OF AMICUS CURIAE THE NATIONAL

LAW SCHOOL VETERANS CLINIC CONSORTIUM

IN SUPPORT OF PETITIONER

Seth M. Owens

Betty & Michael D. Wohl

Veterans Legal Clinic

Syracuse University

950 Irving Avenue

Syracuse, NY 13244

Rebecca L. Feldmann

Widener University

Commonwealth Law School

3800 Vartan Way

Harrisburg, PA 17110

Judy Clausen

Counsel of Record

Veterans and Servicemembers

Legal Clinic

University of Florida

Levin College of Law

309 Village Drive

P.O. Box 117620

Gainesville, FL 32611

(352) 273-0800

jclausen@law.ufl.edu

Counsel for Amicus Curiae

131669

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . . . . iii

Interest of Amicus Curiae . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

Many veterans have ser viceconnected cognitive impairments that

can limit executive functioning . . . . . . . . . . . . . . . 4

A. TBI can impair cognition . . . . . . . . . . . . . . . 5

B. PTSD can impair cognition . . . . . . . . . . . . . . 7

C. Toxic burn pit exposure can impair

cognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. S e r v i c e - c o n n e c t e d c o g n i t i v e

impairments place veterans at a

higher risk for homelessness and

death by suicide . . . . . . . . . . . . . . . . . . . . . . 11

II. The historic inadequacy of transition

prog r a ms f u r t her u nder score s t he

importance of interpreting 38 C.F.R.

§ 3.151(a) in a manner consistent with the

pro-claimant statutory framework . . . . . . . . . . 13

ii

Table of Contents

Page

A. H ist or ica l ly, vet era n t ra nsit ion

programs have had mixed success . . . . . . . 15

B. Congress established the Transition

Assistance Program (TAP) to mitigat e vet era ns’ cha l lenges when

transitioning from service to civilian

life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C. A mend ment s t o TA P h igh l ight

congressional awareness of the need

to address veterans’ confusion on how

to access benefits . . . . . . . . . . . . . . . . . . . . . 18

III. The VA’s historically interchangeable

use of the terms “pension” and “compensation” is an essential point of context

u nderly i ng the i nt er pret at ion of

38 C.F.R. § 3.151(a) . . . . . . . . . . . . . . . . . . . . . . . . 20

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iii

TABLE OF CITED AUTHORITIES

Page

CASES:

Bufkin v. Collins,

145 S. Ct. 728 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bufkin v. Collins,

604 U.S. 369 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Comer v. Peake,

552 F.3d 1362 (Fed. Cir. 2009) . . . . . . . . . . . . . . . . 2, 10

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Henderson v. Shinseki,

562 U.S. 428 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Kisor v. Wilkie,

588 U.S. 558 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Roberson v. Principi,

251 F.3d 1378 (Fed. Cir. 2001) . . . . . . . . . . . . . . . . . . 24

Struck v. Brown,

9 Vet. App. 145 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Oregon,

366 U.S. 643 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Zang v. Brown,

8 Vet. App. 246 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . 23

iv

Cited Authorities

Page

STATUTES AND OTHER AUTHORITIES:

38 U.S.C. §§ 151–52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

38 U.S.C. § 155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

38 U.S.C. §§ 161–62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

38 U.S.C. § 5107(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

38 U.S.C. § 5904(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

38 C.F.R. § 3.4(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

38 C.F.R § 3.102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

38 C.F.R. § 3.103(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

38 C.F.R. § 3.151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

38 C.F.R. § 3.151(a) . . . . . . . . . . . . . . . . . 2, 3, 4, 7, 8, 10, 13,

14, 18, 20, 24, 25

38 C.F.R. § 3.155(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

38 C.F.R. § 3.155(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

38 C.F.R. § 3.354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

38 C.F.R. § 21.1032 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

v

Cited Authorities

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Act of Mar. 18, 1818, § 1, 3 Stat. 410 . . . . . . . . . . . . . . . . 21

Allsup, Navigating VA Disability Benefits 5

(2022), https://www.allsup.com/media/jftmrdbh/

allsup-veterans-survey-report-nov2022.pdf . . . . . . 19

Athena W. Brooks et al., Neuroinflammation and

Brain Health Risks in Veterans Exposed to

Burn Pit Toxins. 25 Int. J. Mol. Sci. 1 (2024) . . . . . 9

Tim A. Bullman, MA, and Han K Kang, DrPH,

The Risk of Suicide among Wounded Vietnam

Veterans, 86:5 A m. J. Pub. Health 662 (1996) . . . . . 12

MAJ Tiffany M. Chapman, Leave no Soldier Behind:

Ensuring Access to Health Care for PTSDafflicted Veterans, 204 Mil. L. Rev. 1 (2010) . . . . . . . 7

Laura D. Crocker et al., Worse Baseline Executive

Functioning is Associated with Dropout

and Poorer Response to Trauma-Focused

Treatment for Veterans with PTSD and

Comorbid Traumatic Brain Injury, 108 Behav.

Rsch. & Therapy 68 (2018) . . . . . . . . . . . . . . . . . . . 6, 8

Tanya de Sousa, et al., U.S. Dep’t Housing &

Urban Dev., The 2024 Annual Homelessness

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Comprehensive, Cross-Sector, EvidenceInformed Public Health Strategy 4 (2021) . . . . . . 11-12

Exec. Order No. 6156 (1933) . . . . . . . . . . . . . . . . . . . . . . 21

Exec. Order No. 13,861, National Roadmap

to Empower Veterans and End Suicide,

84 Fed. Reg. 8585 (Mar. 8, 2019) . . . . . . . . . . . . . . . . 13

William Hudenko, PhD, Beeta Homaifar, PhD,

& Hal Wor tzel, MD, The Relationship

Between PTSD and Suicide (Sept . 30,

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treat/cooccurring/suicide_ptsd.asp . . . . . . . . . . . . . 12

Inst. Med. of the Nat’l Acads. Press, Long-Term

Health Consequences of Exposure to Burn Pits

in Iraq and Afghanistan 17 (2011), https://doi.

org/10.17226/13209 (last visited Oct. 25, 2025) . . . . . 9

Matthew Jakupcak, et al., PTSD as a Risk

Fa c t o r fo r Sui c i d a l Id ea ti o n in Ir a q

a n d Afgh a ni s t a n Wa r Ve t e r a n s, 2 2 :4

J. Traumatic Stress 303 (2009) . . . . . . . . . . . . . . . . . 12

K r i st y N. K a m a r ck , Cong. R sch. S er v.,

R48114, Military Transition Assistance

Program (TAP): Background and Issues for

Congress, Intro, 5 (June 27, 2024), https://

www.congress.gov/crs-product/R48114 . . . . . . . 16, 18

vii

Cited Authorities

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G enev ieve LaGa rde et a l., Mem o r y an d

Executive Dysfunctions Associated with

Acut e Post traum atic Stress Di so rd er,

177 Psych. Rsch. 144 (2010) . . . . . . . . . . . . . . . . . . . 7-8

Alexander V. Libin et al., Executive Functioning

in TBI f ro m Reh abilit atio n t o Social

Reintegration: COMPASS(goal), a Randomized

Controlled Trial, 2 Mil. Med. Res. 1 (2015),

https://pubmed.ncbi.nlm.nih.gov/26664736/ . . . . . . . . 6

Megan A. Lindberg et al., Military Traumatic

Brain Injury: The History, Impact, and Future,

39 J. Neurotrauma 1133 (2022), https://pmc.

ncbi.nlm.nih.gov/articles/PMC9422790/ . . . . . . . . . . . 5

Merriam-Webster Dictionary, Compensation,

https://www.merriam-webster.com/dictionary/

compensation (last visited Oct. 29, 2025) . . . . . . . . . 24

Merriam-Webster Dictionary, Pension, https://

w w w.mer r i a m-webst er.com /d ic t iona r y/

pension (last visited Oct. 29, 2025) . . . . . . . . . . . . . . 24

N at ’ l C a ncer I nst., Cognitive Symptoms,

h t t p s : / / w w w. c a n c e r. g o v / r a r e - b r a i n spi ne -tu mor/ l iv i ng /sy mpt oms /cog n it ive

(last visited Oct. 25, 2025) . . . . . . . . . . . . . . . . . . . . . 10

Nat’l Coalition for Homeless Veterans, What

are Risk Factors for Veteran Homelessness?

(Sept. 30, 2025), https://nchv.org/veteranhomelessness/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

viii

Cited Authorities

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Susan Okie, Traumatic Brain Injury in the War

Zone, 352 N. Engl. J. Med. 2043 (2005), https://

www.nejm.org/doi/10.1056/NEJMp058102 . . . . . . . . 5

PDQ® Supportive and Palliative Care Ed.

Bd., PDQ Cognitive Impairment in Adults

with Cancer, Nat ’l Cancer I nst., https://

w w w.cancer.gov/about-cancer/treatment/

side-effects/memory/cognitive-impairmenthp-pdq (last accessed 10/18/2025) . . . . . . . . . . . . . . . 10

J. Cara Pendergrass et al., Cognitive Impairment

Associated with Cancer: A Brief Review. 15 Innov

Clin Neurosci. 36 (2018) . . . . . . . . . . . . . . . . . . . . . . 10

Pub. L. No. 73-2, § 1, 48 Stat. 8 (1933) . . . . . . . . . . . . . . 21

Pub. L. No. 78-346, 58 Stat. 284 (1944) . . . . . . . . . . . . . 15

Pub. L. No. 82-550, 66 Stat. 663 (1952) . . . . . . . . . . 14, 15

Pub. L. No. 96-22, 93 Stat. 47 (1979) . . . . . . . . . . . . . . . 15

Pub. L. No. 96-466 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 15

Pub. L. No. 101-510, 104 Stat. 1485 (1990) . . . . . . . . . . . 15

Pub. L. No. 110-252, Title V, §§ 5001–5003, 122

Stat. 2357 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Pub. L. No. 112–56, 125 Stat. 713 (2011) . . . . . . . . . . . . 18

ix

Cited Authorities

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Pub. L. No. 115-48 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Pub. L. No. 115–232, 132 Stat. 1636 (2018) . . . . . . . . . . 18

Pub. L. No. 117-168, 136 Stat. 1759 (2022) . . . . . . . . . . . 10

James D. Ridg way, Recover ing an Instituti o n a l Mem o r y: Th e O r i gin s of th e

Modern Veterans’ Benefits System from

1914 to 1958, 5 Veterans L. Rev. 1 (2013) . . . . . . . . . 21

James D. Ridg way, The Splendid Isolation

Re v i s i t e d : Lesso n s f r o m th e Hi s t o r y

of Vet er an s’ Ben ef it s Befo re Ju di c i a l

Review, 3 Veterans l. Rev. 135 (2011) . . . . . . . . . . . 21

S. Rep. No. 101-384 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 16

David J. Sharp & Peter O. Jenkin, Concussion is

Confusing Us All, 15 Practical Neurology 172

(2015), https://pn.bmj.com/content/15/3/172 . . . . . . . . 5

Jack Tsai and Robert A. Rosenheck, Risk Factors

for Homelessness Among U.S. Veterans,

37 Epidemiol Rev. 177 (2015) . . . . . . . . . . . . . . . . . . . 11

U.S. Court of Appeals for Veterans Claims, Fiscal

Year 2020 Annual Report 1, https://www.uscourts.

cavc .gov/documents/FY2020AnnualReport.pdf

(last visited Oct. 29, 2025) . . . . . . . . . . . . . . . . . . . . . 22

x

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U.S. Dep’t of Veterans Aff., Agency Collection

(Veteran’s Application for Compensation and/

or Pension): Activity Under OMB Review,

79 Fed. Reg. 15621 (Mar. 20, 2014) . . . . . . . . . . . . . . 22

U. S . D ep’t of Vet er a n s A f f., D i sa b i li ty

Benefits, Exposure to Burn Pits and Other

Specific Environmental Hazards (June

2 , 2 0 2 3), https: // w w w.va .gov/disabi l ity/

eligibility/ hazardous-materials-exposure/

specific-environmental-hazards/ . . . . . . . . . . . . . . . . 10

U.S. Dep’t of Veterans A ff., How Common

is PTSD in Veterans?, https://w w w.ptsd.

v a . g o v/ u n d e r s t a n d /c o m m o n /c o m m o n _

veterans.asp (last visited Oct. 15, 2025) . . . . . . . . . . . 7

U.S. Dep’t of Veterans Aff., M21-1, Adjudication

Procedures Manual Part II, Subpart iii, Chapter

1, Section A.2.a (Nov. 4, 2024), https://tinyurl.

com/bdzvesff (last visited Oct. 29, 2025 . . . . . . . . . . 21

U.S. Dep’t Veterans Affs., National Center on

Homelessness Among Veterans (NCHAV)

(Sep. 30, 2025), https://www.va.gov/homeless/

nchav/index.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

U.S. Dep’t of Veterans Aff., Off. Transition &

Econ. Dev. (TED), Post-Separation Transition

Assistance Program (TAP) Assessment

(PSTA P) 2019 Cross-Sectio n al Sur vey

Report 34 (2020), https:// benefits.va.gov/

TRANSITION/docs/pstap-assessment.pdf . . . . 14, 19

xi

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U.S. Dep’t of Veterans A ff., Office of Research

and Development: Traumatic Brain Injury

(TBI), https://www.research.va.gov/topics/

tbi.cfm (last visited Oct. 18, 2025) . . . . . . . . . . . . . . 5, 7

U.S. Dep’t of Veterans Aff., VA Form 21-526EZ,

Application for Disability Compensation and

Related Compensation Benefits 9, https://

www.vba.va.gov/pubs/forms/VBA-21-526EZARE.pdf (last visited Oct. 24, 2025) . . . . . . . . . . . . . 23

U.S. Dep’t of Veterans Aff., VA Health Sys.

Rsch , HSR&D Ad ds to the Knowled ge

about Veterans’ Risk Related to Burn Pit

Exposure (June 2, 2023), https://www.hsrd.

research.va.gov/impacts/burn-pits.cfm . . . . . . . . . . . 8

U.S. Dep’t of Veterans Affs., The Military to Civilian

Transition 2018 6 (2018), https://www.benefits.

va.gov/TAP/docs/mct-report-2018.pdf . . . . . . . . . . . 17

U.S. Dep’t Veterans Aff., 2024 National Veteran

Sui c i d e Pr e ve nti o n Annu a l Rep o r t 4

(Dec. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

U.S. Dep’t Veterans Affs, Off. Rsch & Dev.,

Homelessness (Sep. 30, 2025), https://www.

research.va.gov/topics/homelessness.cfm . . . . . . . . 11

xii

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U.S. Gov’t Accountability Off. (GAO), GAO09-108, Traumatic Brain Injury: Better

DOD and VA Oversight Can Help Ensure

More Accurate, Consistent, and Timely

De c i s i o n s fo r t h e Tr a u m a ti c In j u r y

Insurance Program 12 (2009) . . . . . . . . . . . . . . . . . . . 6

U.S. Gov’t Accountability Off., GAO-05-544,

M i l i t a r y a n d Ve t e r a n s ’ B e n e f i t s :

E n h a n c e d S e r v i c e s C o u l d Im p r o v e

Transition Assistance for Reserves and

National Guard 8 (May 2005) . . . . . . . . . . . . . . . . . . 17

U.S. Gov’t Accountability Off., GAO-25-107504,

Information about Veterans’ Exposure to

Open-Air Burning in Vietnam 13 (2025) . . . . . . . . . 9

VA Form 21-0966, Intent to File a Claim for

Compensation and/or Pension, or Survivors

Pension and/or DIC 2 (hereinafter VA Form 210966, https://www.vba.va.gov/pubs/forms/VBA21-0966-ARE.pdf (last visited Oct. 24, 2025) . . . . . 22

Gale Whiteneck, et al., Two Decades of Department

of Veterans Affairs Traumatic Brain Injury

Care and Benefits for Veterans of Post-9/11

Conf licts, 39 J. H ea d T r au m a R eh a bil .

E462 (2024), https://pmc.ncbi.nlm.nih.gov/

articles/PMC11387123/ . . . . . . . . . . . . . . . . . . . . . . . . . 6

xiii

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Julie A. Whitworth, Brian Smet, & Bridget

Anderson, Reconceptualizing the U.S. Military’s

Transition Assistance Program: The Success in

Transition Model, 6 J. Veterans Stud. 25 (2020),

https://doi.org/10.21061/jvs.v 6i1.144 . . . . . . . 14, 16, 17,

18, 19

1

Interest of Amicus Curiae1

The National Law School Veterans Clinic Consortium

(“NLSVCC”) submits this brief in support of the petition

of Petitioner Julien P. Champagne. The filing of this brief

was authorized by the Board of the NLSVCC, a 501(c)(3)

organization.

The NLSVCC is a collaborative effort led by the

nation’s law school legal clinics, dedicated to addressing

the unique legal needs of U.S. military veterans and

supporting law school veterans clinics nationwide. The

NLSVCC believes that law school veterans clinics play

a fundamental role in safeguarding and advocating for

veterans’ legal rights, including by advancing scholarship

and training advocates for veterans.

The NLSVCC works with like-minded stakeholders

to support and advance common interests with the U.S.

Department of Veterans Affairs (VA), Congress, state

and local veterans service organizations, court systems,

educators, and other entities for the benefit of veterans.

It also supports the dual teaching and advocacy missions

of the nation’s law school veterans clinics through crossclinic collaboration.

The NLSVCC’s interest in Veteran Champagne’s

petition stems from our members’ commitment to

1. In compliance with Rule 37.2, counsel for amicus curiae

provided notice to all parties of its intention to file an amicus brief.

In compliance with Rule 37.6, amicus affirms that no counsel for a

party authored the brief in whole or in part. No party, counsel for

a party, or any person other than amicus curiae and their counsel

made a monetary contribution intended to fund the preparation or

submission of the brief.

2

serving the legal interests of veterans, including those

like the Petitioner who have service-connected cognitive

impairments and must venture into the bureaucratic

quagmire of the VA claims process. As an organization

whose members are veterans’ advocates and scholars,

amicus NLSVCC has an important interest in requesting

that this Court issue a decision in support of Veteran

Champagne and similarly situated veterans, correct the

Federal Circuit’s interpretation of 38 C.F.R. § 3.151(a),

and ensure that the VA is bound by its duty to “render a

decision [for a veteran] which grants every benefit that

can be supported in law.” See 38 C.F.R. § 3.103(a).

SUMMARY OF THE ARGUMENT

The VA’s duties to veterans are essential to the “proclaimant” nature of the VA disability system. Comer

v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009); see also

Bufkin v. Collins, 604 U.S. 369, 373 (2025) (noting the

“pro-veteran policy choice that dates back to the post-Civil

War era”). VA claims procedures and its accompanying

duties are designed to allow veterans seeking benefits for

disabilities – including disabilities that impair cognition or

executive function like Mr. Champagne’s – to access the

benefits to which they are legally entitled. Yet VA’s narrow

construction of 38 C.F.R. § 3.151(a) catches veterans like

Mr. Champagne in a paradox: it requires them to identify

the “greater benefit” to which they would be entitled,

even for disabilities that impair their ability to make this

determination.

VA’s duty under 38 C.F.R. § 3.151(a) to ensure that

veterans receive the “greater” of service-connected

disability compensation or pension benefits is critical for

3

the significant number of veterans with a service-connected

cognitive impairment—like Veteran Champagne’s

cerebellar degenerative disorder (CDD). Veterans with

traumatic brain injuries (TBI) and toxic exposure can

exhibit cognitive impairment, as well, as can veterans with

post-traumatic stress disorder (PTSD). These veterans

are most at risk for indigence, homelessness, and death

by suicide. The difference between pension and disability

compensation can be the difference between poverty and

getting by. Allowing the VA to decide when its duty to

find the “greater benefit” to which the veteran is entitled

places additional risk on this vulnerable population.

Reading 38 C.F.R. § 3.151(a) to require VA to find

the “greater benefit” to which the veteran is entitled in

all cases is further appropriate because servicemembers

transitioning out of the military have historically received

little guidance on how to apply for VA benefits. For Veteran

Champagne and others who served before 1991, a formal

Transition Assistance Program (TAP) did not exist.

Congress created TAP in 1991 and revised the program

multiple times to address veterans’ needs. However,

servicemembers still struggle to access information

about VA benefits applicable to their circumstances. The

shortcomings of TAP’s coverage of VA benefits further

supports Veteran Champagne’s reading of 38 C.F.R.

§ 3.151(a).

Finally, the VA’s historically interchangeable use of the

terms “pension” and “compensation” must be considered

when interpreting 38 C.F.R. § 3.151(a). The law conflated

veterans’ pension and service-connected compensation for

almost one hundred years. Vernacular understandings of

“pension” and “compensation,” combined with language

4

in modern VA forms, magnify veterans’ confusion. In

this context, it becomes critical that 38 C.F.R. § 3.151(a)

requires VA adjudicators to consider an application for

compensation as an application for pension, and vice versa.

Given this context, the Federal Circuit’s interpretation

of 38 C.F.R. § 3.151(a) runs afoul of Congress’s intent to

give the “benefit of the doubt” to the veteran “regarding

any issue material to the determination of a matter.” 38

U.S.C. § 5107(b).

ARGUMENT

I.

Many veterans have service-connected cognitive

impairments that can limit executive functioning.

The VA’s narrow construction of 38 C.F.R. § 3.151(a)

presumes veteran claimants have mental competence,

the ability to recount specific traumatic details, maintain

medical records, and comprehend procedural rules

prescribed by the Secretary. Yet, when a “pro-claimant”

system fails to account for veterans’ cognitive impairments,

it risks penalizing them for the neurological consequences

of their service. This section shows how conditions

common among veterans like TBI, PTSD, and conditions

associated with toxic exposure can impact veterans’ ability

to identify the benefits to which they are entitled and

follow the steps that VA requires. Accordingly, reading

38 C.F.R. § 3.151(a) to place the burden of identifying the

“greater benefit” with VA in all cases better aligns with

VA’s “pro-claimant” design.

5

A.

TBI can impair cognition.

Perhaps the condition most commonly associated

with veteran cognitive impairments, traumatic brain

injury (“TBI”), often causes memory loss, distorted focus,

and executive dysfunction that can significantly hinder

veterans’ ability to navigate the complex procedural

requirements of the VA system. See Susan Okie,

Traumatic Brain Injury in the War Zone, 352 N. Engl.

J. Med. 2043 (2005), https://www.nejm.org/doi/10.1056/

NEJMp058102.

Historically, TBI was often misdiagnosed as a

“concussion,” which delayed recognition of its lasting

cognitive effects. David J. Sharp & Peter O. Jenkin,

Concussion is Confusing Us All, 15 Practical Neurology

172 (2015), https://pn.bmj.com/content/15/3/172. Evolving

from the colloquial term “concussion” to the “signature

wound” of the Global War on Terrorism, TBI is now better

recognized and studied, revealing high rates of cognitive

impairment among veterans. Megan A. Lindberg et al.,

Military Traumatic Brain Injury: The History, Impact,

and Future, 39 J. Neurotrauma 1133 (2022), https://

pmc.ncbi.nlm.nih.gov/articles/PMC9422790/. More than

185,000 veterans served by the VA today have been

diagnosed with at least one TBI. U.S. Dep’t of Veterans

A ff., Office of Research and Development: Traumatic

Brain Injury (TBI), https://www.research.va.gov/topics/

tbi.cfm (last visited Oct. 18, 2025).

Today, veterans who suffer from TBI face medical

and procedural challenges with the VA systems that aim

to assist them. TBI disrupts brain systems responsible

6

for working memory, cognitive flexibility, and other

executive functions that impair goal-setting and decisionmaking – vital skills to navigating the claims process.

Crocker et al., supra at 69; Alexander V. Libin et al.,

Executive Functioning in TBI from Rehabilitation to

Social Reintegration: COMPASS(goal), a Randomized

Controlled Trial, 2 Mil. Med. Res. 1, 3 (2015), https://

pubmed.ncbi.nlm.nih.gov/26664736/. Consequently, many

veterans with TBI struggle to complete VA forms. A

joint study by the Veterans Health Administration and

Veterans Benefits Administration found that of 441,639

post 9/11 veterans exhibiting TBI symptoms, only 108,541

– or 24.6% – filed disability claims for TBI-related injuries.

Gale Whiteneck, et al., Two Decades of Department of

Veterans Affairs Traumatic Brain Injury Care and

Benefits for Veterans of Post-9/11 Conflicts, 39 J. Head

Trauma Rehabil. E462 (2024), https://pmc.ncbi.nlm.nih.

gov/articles/PMC11387123/. Notably, the actual number of

veterans with TBI is likely higher, due to underreporting

and delays in care resulting from misdiagnosis of brain

trauma. See U.S. Gov’t Accountability Off. (GAO), GAO09-108, Traumatic Brain Injury: Better DOD and VA

Oversight Can Help Ensure More Accurate, Consistent,

and Timely Decisions for the Traumatic Injury

Insurance Program 12 (2009).

Like Veteran Champagne, veterans with TBI, because

of their service-connected injury, struggle to understand

eligibility requirements, complete applications, and

recognize which claim provides better benefits. These

veterans struggle to access the VA system because the

claims process demands the exact executive functioning

abilities that their injury has compromised. This paradox

underscores the VA’s duty to grant every benefit to which

7

they are entitled—or the greater of two when eligible

for both. See 38 C.F.R. § 3.103(a); 38 C.F.R. § 3.151(a);

see also 38 C.F.R. § 3.155(d) (requiring VA to adjudicate

“any ancillary benefits” during the claim process “that

arise as a result of the adjudication decision,” regardless

of whether the veteran asserts entitlement). The Federal

Circuit’s interpretation of what the VA “may” do under

§ 3.151 ignores the larger context design of the VA

disability benefits system. This reading risks abdicating

the VA’s duties to cognitively impaired claimants, like

Veteran Champagne and the over 185,000 veterans with

TBIs. U.S. Dep’t of Veterans Aff., Off. Rsch. & Dev.,

Traumatic Brain Injury (TBI), https://www.research.

va.gov/topics/tbi.cfm (last visited Oct. 18, 2025).

B. PTSD can impair cognition.

From “shell shock” to “psychiatric casualties,” the U.S.

military has recognized the psychological repercussions

of combat-related trauma, burdening servicemembers

and veterans for more than a century. MAJ Tiffany M.

Chapman, Leave no Soldier Behind: Ensuring Access to

Health Care for PTSD-afflicted Veterans, 204 Mil. L. Rev.

1, 6 (2010). PTSD diagnoses have risen gradually, affecting

approximately 30% of veterans who served in Iraq and

Afghanistan. U.S. Dep’t of Veterans Aff., How Common is

PTSD in Veterans?, https://www.ptsd.va.gov/understand/

common/common_veterans.asp (last visited Oct. 15, 2025).

Although PTSD may be less commonly associated with

cognitive impairment in the public’s understanding, many

of these veterans experience significant impairment in

“memory functioning, attentional processes, . . . working

memory, and executive functioning.” Genevieve LaGarde

et al., Memory and Executive Dysfunctions Associated

8

with Acute Posttraumatic Stress Disorder, 177 Psych.

Rsch. 144, 146-47 (2010). These impairments affect the

abilities required to navigate the VA claims system.

A veteran experiencing such impairments may or

may not be able to distinguish between “pension” and

“compensation” benefits or comprehend procedural

requirements when filing a claim, but they will still be

required to complete the process like others. See 38 C.F.R.

§ 3.151 (2019); Laura D. Crocker et al., Worse Baseline

Executive Functioning is Associated with Dropout and

Poorer Response to Trauma-Focused Treatment for

Veterans with PTSD and Comorbid Traumatic Brain

Injury, 108 Behav. Rsch. & Therapy 68, 73-74 (2018). If

the Federal Circuit’s interpretation of 38 C.F.R. § 3.151

stands, the VA’s duties to these veterans are minimized,

creating a paradox wherein veterans with cognitive

impairments are required to engage in a cognitively

demanding process to secure benefits for those cognitive

impairments. See 38 C.F.R. § 21.1032; 38 C.F.R § 3.102;

38 C.F.R. § 3.151(a).

C.

Toxic burn pit exposure can impair cognition.

Approximately 4 million veterans deployed over the

last thirty years were exposed to burn pits. See U.S.

Dep’t of Veterans Aff., VA Health Sys. Rsch, HSR&D

Adds to the Knowledge about Veterans’ Risk Related

to Burn Pit Exposure (June 2, 2023), https://www.hsrd.

research.va.gov/impacts/burn-pits.cfm. These veterans

risk developing illnesses that impact cognitive functioning.

A 2025 GAO study found that in a sample of veterans

who served in Vietnam from 1964–75, 90% cited concerns

9

about their toxic exposures to open-air burn pits, often

noting that they never received personal protective

equipment when in their proximity. See U.S. Gov’t

Accountability Off., GAO-25-107504, Information about

Veterans’ Exposure to Open-Air Burning in Vietnam

13–22 (2025). The use of burn pits remained the primary

method of waste management in Iraq and Afghanistan

until 2010. See Inst. Med. of the Nat ’l Acads. Press,

Long-Term Health Consequences of Exposure to Burn

Pits in Iraq and Afghanistan 17 (2011), https://doi.

org/10.17226/13209 (last visited Oct. 25, 2025).

Studies have shown that chronic exposure to the toxins

that burn pits emit can result in inflammation, oxidative

stress, and neuronal damage, which can contribute to

neurodegenerative diseases and cognitive impairment.

Athena W. Brooks et al., Neuroinflammation and Brain

Health Risks in Veterans Exposed to Burn Pit Toxins. 25

Int. J. Mol. Sci. 1, 1 (2024). Moreover, the permeability of

the blood-brain barrier (BBB) can be affected by chronic

exposures to the toxins emitted from burn pit materials.

Id at 3. Additionally, veterans exposed to burn pit toxins

have higher rates of “neuroinf lammatory markers,

cognitive impairments, mental health disorders,” and

increased risk for brain and other cancers. Id at 8. For

these veterans with cognitive impairments, like Veteran

Champagne and those with PTSD or TBI, navigating the

complex procedural processes within the VA disability

system can make it exceedingly difficult to properly file

claims.

The Promise to Address Comprehensive Toxics (PACT)

Act aimed to expand VA healthcare and presumptive

conditions for veterans with illnesses related to toxic

10

exposure. See Pub. L. No. 117-168, 136 Stat. 1759 (2022).

Included in these presumptive conditions are various

cancers which lead to cognitive impairment—either from

the condition itself or from the required treatment. See

U.S. Dep’t of Veterans Aff., Disability Benefits, Exposure

to Burn Pits and Other Specific Environmental Hazards

(June 2, 2023), https://www.va.gov/disability/eligibility/

hazardous-materials-exposure/specific-environmentalhazards/; PDQ® Supportive and Palliative Care Ed.

Bd., PDQ Cognitive Impairment in Adults with Cancer,

Nat’l Cancer Inst., https://www.cancer.gov/about-cancer/

treatment/side-effects/memory/cognitive-impairment-hppdq (last accessed 10/18/2025). Often, cognitive symptoms

like difficulty remembering, speaking, understanding,

concentrating, and other loss of executive functioning

begin years before diagnosis. See Nat ’l Cancer Inst.,

Cognitive Symptoms, https://w w w.cancer.gov/rarebrain-spine-tumor/living/symptoms/cognitive (last visited

Oct. 25, 2025); J. Cara Pendergrass et al., Cognitive

Impairment Associated with Cancer: A Brief Review. 15

Innov Clin Neurosci. 36, 37 (2018) (identifying cognitive

impairment in newly diagnosed patients with cancer).

Like Veteran Champagne and veterans with PTSD

or TBI, veterans with cognitive impairment related to

toxic exposure may struggle to navigate the VA claims

process because of the very condition for which they seek

compensation. For these veterans, the Federal Circuit’s

interpretation of 38 C.F.R. § 3.151(a) risks undermining

the “pro-claimant” nature of the VA. Comer v. Peake, 552

F.3d 1362, 1368 (Fed. Cir. 2009).

11

D.

Service-connected cognitive impairments place

veterans at a higher risk for homelessness and

death by suicide.

Veterans face higher risks of homelessness and death

by suicide than other U.S. adults, and the danger is acute

for those with service-connected cognitive impairments.

Although veteran homelessness has declined since 2009,

32,882 veterans—5.3% of the U.S. adult population—were

still unhoused in 2024. Tanya de Sousa, et al., U.S. Dep’t

Housing & Urban Dev., The 2024 Annual Homelessness

Assessment Report (AHAR) to Congress 49 (2024).

Because the 2009 AHAR highlighted the plight of over

73,000 homeless veterans, new policy initiatives focused on

developing a “housing first” model of programs to provide

stability and utilized special healthcare teams designed

to address the unique needs of these veterans. See U.S.

Dep’t Veterans Affs, Off. Rsch & Dev., Homelessness

(Sep. 30, 2025), https://www.research.va.gov/topics/

homelessness.cfm; U.S. Dep’t Veterans Affs., National

Center on Homelessness Among Veterans (NCHAV) (Sep.

30, 2025), https://www.va.gov/homeless/nchav/index.html.

VA researchers have shown that the most consistent risk

factors contributing to veteran homelessness are substance

abuse, mental health problems and psychotic disorders

(including PTSD), and low income/unemployment. See

Jack Tsai and Robert A. Rosenheck, Risk Factors for

Homelessness Among U.S. Veterans, 37 Epidemiol Rev.

177–78, 191 (2015).

Similarly, the epidemic of veteran suicide has been

recognized as “a public health and national security

crisis.” Exec. Off. of the President, Reducing Military

and Veteran Suicide: Advancing a Comprehensive,

12

Cross-Sector, Evidence-Informed Public Health Strategy

4 (2021). One study indicated a 102.9% increased

likelihood of death by suicide based on veteran status

alone. William Hudenko, PhD, Beeta Homaifar, PhD,

& Hal Wortzel, MD, The Relationship Between PTSD

and Suicide (Sept. 30, 2025), https://www.ptsd.va.gov/

professional/treat/cooccurring/suicide_ptsd.asp; U.S.

Dep’t Veterans Aff., 2024 National Veteran Suicide

Prevention Annual Report 4 (Dec. 2024) (hereinafter VA

2024 Suicide Prevention Report). To address this issue,

VA has implemented early interventions, crisis hotlines,

interagency task forces, national suicide prevention

campaigns, and other interdisciplinary approaches. See

White House, Reducing Military and Veteran Suicide:

Advancing a Comprehensive, Cross-Sector, EvidenceInformed Public Health Strategy 4-8 (2021) (discussing

the plethora of federal programs aimed at reducing

veteran deaths by suicide). Despite these efforts, the

rate of veteran suicide continues to remain higher than

that of non-veteran adults because of the correlation to

combat wounds, including PTSD. See VA 2024 Suicide

Prevention Report at 4; see also Tim A. Bullman, MA,

and Han K Kang, DrPH, The Risk of Suicide among

Wounded Vietnam Veterans, 86:5 A m. J. Pub. Health

662, 666 (1996) (correlating multiple combat wounds or

being hospitalized for a combat wound to an increased

risk for suicidal behavior); Matthew Jakupcak, et al.,

PTSD as a Risk Factor for Suicidal Ideation in Iraq

and Afghanistan War Veterans, 22:4 J. Traumatic Stress

303, 305 (2009) (finding PTSD can make a veteran four

times more likely to report suicidal ideation even when

controlling for age, depression, and substance abuse).

A common thread among these vulnerable veterans

is their service-connected cognitive impairments. While

13

approximately 65% of homeless veterans utilized the VA’s

Health Care for Homeless Veterans (HCHV) and the VA’s

Homeless Chronically Mentally Ill (HCMI) Programs,

“[n]early 70 percent of veterans who end their lives by

suicide have not recently received healthcare services

from the [VA].” Nat’l Coalition for Homeless Veterans,

What are Risk Factors for Veteran Homelessness?

(Sept. 30, 2025), https://nchv.org/veteran-homelessness/;

Exec. Order No. 13,861, National Roadmap to Empower

Veterans and End Suicide, 84 Fed. Reg. 8585, 8585 (Mar.

8, 2019). These statistics highlight the challenges faced by

these cognitively impaired veterans and the importance

of ensuring their access to VA benefits.

The VA’s duties to veterans, embedded in statute and

regulation, risk being diminished by the Federal Circuit’s

ruling. See Bufkin v. Collins, 145 S. Ct. 728, 734 (2025)

(quoting Henderson v. Shinseki, 562 U.S. 428, 431 (2011))

(“Congress designed the VA’s adjudicatory process to

function ‘with a high degree of informality and solicitude

for the claimant.’”). These considerations underscore the

need to interpret 38 C.F.R. § 3.151(a) consistently with

the history and purpose of the overarching statutory

framework. Kisor v. Wilkie, 588 U.S. 558, 575 (2019).

II. The historic inadequacy of transition programs

further underscores the importance of interpreting

38 C.F.R. § 3.151(a) in a manner consistent with the

pro-claimant statutory framework.

Shortcomings in transition programs leave veterans

uncertain as to how to identify and apply for benefits

to which they are entitled. Early programs, including

those for veterans who served and were discharged

around the same time as Veteran Champagne provided

14

scarce coverage on how to apply for earned benefits. See

Veterans’ Readjustment Assistance Act of 1952, Pub. L.

No. 82-550, 66 Stat. 663 (1952). Although there has been

progress from initial transition programs, programming

devotes minimal time to the preparation of veterans’

benefits like compensation and pension. See U.S. Dep’t

of Veterans Aff., Off. Transition & Econ. Dev. (TED),

Post-Separation Transition Assistance Program (TAP)

Assessment (PSTAP) 2019 Cross-Sectional Survey Report

34 (2020), https://benefits.va.gov/TRANSITION/docs/

pstap-assessment.pdf.

Because veterans cannot usually attain legal help until

the appeals stages and Veterans Service Organizations

are not universally accessible, many must rely on their own

knowledge to fill out the proper forms. Without guidance

on the meanings of and differences between VA terms,

such as “compensation” and “pension,” mistakes by the

filing veteran are inevitable. See 38 U.S. Code § 5904(c)

(1); Julie A. Whitworth, Brian Smet, & Bridget Anderson,

Reconceptualizing the U.S. Military’s Transition

Assistance Program: The Success in Transition Model,

6 J. Veterans Stud. 25, 25 (2020), https://doi.org/10.21061/

jvs.v 6i1.144.

Veteran Champagne, and others like him, should not

bear the burden of structural pitfalls, like the compensation

and pension form, when they were not provided training

or guidance on how to avoid them. 38 C.F.R. § 3.151(a)

should be interpreted with this important context in mind

in a manner that comports with the intentionally veteranfriendly statutory framework.

15

A.

Historically, veteran transition programs have

had mixed success.

Veterans’ transition programs have had varied

success, as evidenced by the evolving legislation to aid

veterans after discharge. During World War II, Congress

passed the G.I. Bill, which aimed to assist veterans’

adjustment to civilian life via funds for education, home

loans, and readjustment allowances for unemployed

veterans. See Servicemen’s Readjustment Act of 1944,

Pub. L. No. 78-346, 58 Stat. 284 (1944). Congress continues

to amend the G.I. Bill to better suit veterans’ needs. See

Veterans’ Readjustment Assistance Act of 1952, Pub.

L. No. 82-550, 66 Stat. 663 (1952) (extending benefits

to Korean War veterans and adding safeguards against

benefits abuse); GI Bill Amendments Act of 1979, Pub. L.

No. 96-22, 93 Stat. 47 (1979) (expanding VA healthcare

programs and disability benefits); Veterans’ Rehabilitation

and Education Amendments of 1980, Pub. L. No. 96-466

(1980) (expanding rehabilitation programs and education

provisions); Post-9/11 Veterans Educational Assistance

Act of 2008, Pub. L. No. 110-252, Title V, §§ 5001–5003,

122 Stat. 2357 (2008) (expanding educational benefits after

noting the previous program was outmoded); Harry W.

Colmery Veterans Educational Assistance Act of 2017,

Pub. L. No. 115-48 (2017) (further expanding educational

assistance by removing time limit for certain veterans). For

generations of veterans, offboarding related to available

benefits, and application guidance has been inadequate

because official programming to train veterans about

benefits and how to access them did not begin until 1991.

See National Defense Authorization Act for Fiscal Year

1991, Pub. L. No. 101-510, 104 Stat. 1485 (1990).

16

Today, law school clinics nationwide serve generations

of veterans who struggle to understand the VA claims

process, in part because the veterans received little to

no information during their separation. These veterans

find the pension and compensation applications difficult

to navigate on their own. In fact, “[s]ixty percent of these

servicemembers describe … navigating [VA] programs,

services, and benefits as challenging.” See Whitworth,

Smet & Anderson, supra, 25. In a claimant-friendly

system, this context should be considered.

B. Congress established the Transition Assistance

Program (TAP) to mitigate veterans’ challenges

when transitioning from service to civilian life.

The “pro-claimant” benefits system Congress

env isioned is indispensable, g iven the histor ical

inadequacy of programs to prepare servicemembers to

transition to civilian life. Recognizing the challenges

of this transition, Congress authorized the first formal

Transition Assistance Program (“TAP”) in the National

Defense Authorization Act for Fiscal Year 1991. See

Kristy N. Kamarck, Cong. Rsch. Serv., R48114, Military

Transition Assistance Program (TAP): Background

and Issues for Congress, Intro, 5 (June 27, 2024), https://

www.congress.gov/crs-product/R48114. TAP strove to

“implement a uniform, aggressive program” requiring the

military to provide pre-separation counseling on veteran

benefits and services, government-sponsored employment

programs, and job-training assistance. S. Rep. No. 101384, at 173 (1990). While TAP represented progress, its

implementation did not fully prepare servicemembers to

access earned benefits and resources. TAP’s shortcomings

were especially pronounced in its early years, when

17

it primarily targeted workforce reintegration and

failed to address other aspects of transition. U.S. Gov’t

Accountability Off., GAO-05-544, Military and Veterans’

Benefits: Enhanced Services Could Improve Transition

Assistance for Reserves and National Guard 8 (May

2005).

Initially, TAP provided only a few days of generalized

instruction on post-service employment and job training.

U.S. Dep’t of Veterans Affs., The Military to Civilian

Transition 2018 6 (2018), https://www.benefits.va.gov/

TAP/docs/mct-report-2018.pdf. This training prioritized

job placement over education about VA benefits and was

not grounded in research-based data on supporting

individuals in periods of transition. See Whitworth,

Smet & Anderson, supra, at 25–35. As late as 2004,

the military identified TAP’s central goal as preparing

servicemembers for “successful reentry into the nation’s

civilian workforce.” U.S. Gov’t Accountability Off., GAO05-544, supra, at 8. TAP participation remained largely

voluntary, further limiting the program’s reach. Id.

In response to these concerns, the National Defense

Authorization Act for Fiscal Year 2005 mandated that the

GAO review whether TAP addressed servicemembers’

needs. Id. at Intro. The GAO noted that the TA P

components addressing the VA benefits system were not

mandatory. Id. at 27. Because these components were

voluntary, servicemembers struggled to be released

from military duty to attend TAP, because commanders

prioritized the military mission. Id. at 7. The VA reported

that training on disability benefits was provided to all

servicemembers receiving care from VA providers. Id. at

17. However, the GAO could not assess servicemembers’

18

participation in this TAP component or its success in

supporting disabled servicemembers because the VA did

not track that information. Id. at Intro.

The f i rst three decades of TA P emphasi zed

employability over benefit entitlement, leaving many

disabled veterans without adequate knowledge about

available VA benefits. This critical gap underscores why

the VA’s “pro-claimant” obligations, including those under

38 C.F.R. § 3.151(a), must be construed liberally.

C.

Amendments to TAP highlight congressional

awareness of the need to address veterans’

confusion on how to access benefits.

Congress amended TAP approximately fifteen times

to respond to veterans’ needs, illustrating concerns that

a one-size-fits-all approach has not worked. Kamarck,

Cong. Rsch. Serv., R48114, supra, at 12–13. In 2011, TAP

shifted from largely voluntary to mostly mandatory. VOW

to Hire Heroes Act of 2011, Pub. L. No. 112–56, 125 Stat.

713 (2011). TAP faced another overhaul in 2019, moving

the training up in the transition timeline. John S. McCain

National Defense Authorization Act for Fiscal Year 2019,

Pub. L. No. 115–232, 132 Stat. 1636 (2018). As TAP exists

today, there is one day of training on disability benefits.

Kamarck, Cong. Rsch. Serv., R48114, supra, at 2. 2

2. To their credit, the VA and DoW have also attempted to

reduce the post-separation gap in benefits delivery through the

Benefits Delivery at Discharge (BDD) program, which allows

servicemembers within 90 –180 days of separation to file for

disability‐compensation benefits while still on active duty. U.S.

Dep’t of Veterans Affairs, Benefits Delivery at Discharge (“BDD”)

Program (Apr. 16, 2025), https://www.va.gov/benefits/benefits-

19

Unfortunately, surveys of veterans have revealed that

existing programs have not been entirely successful in

creating a smooth transition from service to civilian life.

For example, a VA survey found “many respondents said

they needed more time with the information provided

within the VA briefings.” TED, PSTAP 2019 CrossSectional Survey Report, supra, 34. Veterans rated the

VA briefings as the most helpful part of TAP, but they

wanted more, stating, “There are so many benefits and

so little time to know about them.” Id. at 2, 35. Similarly,

another survey found that “[o]nly 15% of veterans strongly

agree[d] that they got good guidance on VA benefits and

resources when exiting the military.” Allsup, Navigating

VA Disability Benefits 5 (2022), https://www.allsup.com/

media/jftmrdbh/allsup-veterans-survey-report-nov2022.

pdf.

Although Congress intended TAP to facilitate a

smooth transition from military to civilian life, barriers

preventing TAP from functioning as Congress intended

have limited TAP’s success. Contrary to assertions from

the military and the VA, TAP continues to employ a “onesize-fits-all” model that struggles to meet the diverse

needs and capacities of separating servicemembers. See

Whitworth, Smet & Anderson, supra, at 25. As TAP

evolves, its shortcomings in this period of reform have

fallen most heavily on those least equipped to manage

transition — disabled veterans, including those with

delivery-discharge-program.asp (explaining that the BDD program

“allows Service members … to apply for VA disability compensation

benefits between 180 to 90 days prior to separation”). However,

the BDD program is underutilized and is only available to certain

servicemembers during a narrow window of opportunity (90-180

days before separation from active duty).

20

cognitive impairments like Veteran Champagne. These

inadequacies illustrate why Congress placed the burden

on the VA, not the veteran, to identify and develop claims

within a “pro-claimant” framework. Yet the Federal

Circuit’s restrictive reading of § 3.151(a) undermines that

congressional safeguard, leaving the most vulnerable

veterans exposed to procedural quagmires that Congress

designed the statute to prevent.

For Veteran Champagne and others, TAP did not

exist and, even for veterans with access to the program,

TAP’s training on VA benefits is not sufficient. These

shortcomings support reading 38 C.F.R. § 3.151(a) in

a manner that is consistent with the VA’s overarching

statutory framework and pro-claimant design.

III. The VA’s historically interchangeable use of the

terms “pension” and “compensation” is an essential

point of context underlying the interpretation of 38

C.F.R. § 3.151(a).

The VA’s historically interchangeable use of the

terms “pension” and “compensation” creates ambiguity

and provides essential context in interpreting 38 C.F.R.

§ 3.151(a). Historical conflation of the two programs

has leaked into vernacular use, meaning that the

public and veterans alike often refer to pension and

compensation interchangeably even today. The history of

veterans’ “compensation” and “pension” benefits began

at the founding of the nation. The newly minted federal

government, fresh off the heels of the Revolutionary War,

decided to provide a benefit to “invalids who were wounded

and disabled during the war.” Act of September 29, 1789,

1 Stat. 95. Thirty years later, Congress issued another

21

monetary benefit program, this time for veterans who

were “by reason of [their] reduced circumstances in life .

. . in need of assistance from his country for support.” Act

of Mar. 18, 1818, § 1, 3 Stat. 410.

The twin “compensation” and “pension” systems

evolved piecemeal over the twentieth century. See

generally James D. Ridgway, Recovering an Institutional

Memory: The Origins of the Modern Veterans’ Benefits

System from 1914 to 1958, 5 Veterans L. Rev. 1 (2013).

During that time, Congress and the public conflated the

“compensation” and “pension” systems, treating them as

unified. See James D. Ridgway, The Splendid Isolation

Revisited: Lessons from the History of Veterans’ Benefits

Before Judicial Review, 3 Veterans l . Rev. 135, 170

(2011). Veterans receiving either benefit were receiving

a “pension.” See Pub. L. No. 73-2, § 1, 48 Stat. 8 (1933);

see also Exec. Order No. 6156 (1933). Some “pensions”

were even reserved for veterans with service-connected

disabilities. See 38 U.S.C. § 155 (1926). Legislative

enactments in 1934 similarly demonstrate the historic

conflation of “pension” and “compensation.” Compare

38 U.S.C. §§ 151–52 (1934) (service-connected disability

“pension” for Civil War veterans) and §§ 161–62 (nonservice-connected “pension” for peacetime veterans) with

§ 471 (service-connected disability compensation for WWI

veterans) and § 700 (service-connected benefits to WWI

veterans “entitled ‘compensation’ and not ‘pension’”).

Most confusing of all, until 2019, a veteran could apply

for either compensation or pension using a single form.

See U.S. Dep’t of Veterans Aff., M21-1, Adjudication

Procedures Manual Part II, Subpart iii, Chapter 1,

Section A.2.a (Nov. 4, 2024), https://tinyurl.com/bdzvesff

22

(last visited Oct. 29, 2025 (discontinuing VA Form 21-526

as of Feb. 19, 2019 in favor of VA Form 21-526EZ); see also

U.S. Dep’t of Veterans Aff., Agency Collection (Veteran’s

Application for Compensation and/or Pension): Activity

Under OMB Review, 79 Fed. Reg. 15621 (Mar. 20, 2014).

Although VA now uses separate forms to allow veterans to

apply for compensation or pension, the agency still uses a

single form to allow veterans to establish the effective date

of a claim for compensation, pension, or both. See VA Form

21-0966, Intent to File a Claim for Compensation and/or

Pension, or Survivors Pension and/or DIC 2 (hereinafter

VA Form 21-0966, https://www.vba.va.gov/pubs/forms/

VBA-21-0966-ARE.pdf (last visited Oct. 24, 2025) ); see

also 38 C.F.R. § 3.155(b) (discussing how a veteran may

establish their intent to file a claim).

Today, many veterans file their claims pro se. See

U.S. Court of Appeals for Veterans Claims, Fiscal Year

2020 Annual Report 1, https://www.uscourts.cavc .gov/

documents/FY2020AnnualReport.pdf (last visited Oct.

29, 2025) (noting 41% of petitions and 23% of appeals

to that court were pro se in FY2020). Completing VA

forms correctly can be daunting for veterans who are

unrepresented. As discussed above, this challenge

becomes even more daunting for veterans with cognitive

disabilities resulting from their service. For example, the

VA’s form allowing veterans to establish their intent to

file a claim (and thus establish that claim’s effective date),

allows veterans to choose compensation, pension, or both

as the benefit for which they are applying, by checking

one or two boxes. By contrast, the same form has a single

box for a veteran’s surviving dependent to elect survivor’s

pension “and/or” disability and indemnity compensation.

VA Form 21-0966, supra, at 2. The fact that a single VA

23

form may establish the effective date for any, and more

than one, of multiple types of benefits only compounds

the confusion that veterans may face due to the historic

interchangeability of “compensation” and “pension.”

Potentially adding to that confusion is the name of the

compensation application itself, which highlights that it is

an application not just for disability compensation, but also

for “related compensation benefits.” U.S. Dep’t of Veterans

Aff., VA Form 21-526EZ, Application for Disability

Compensation and Related Compensation Benefits 9,

https://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.

pdf (last visited Oct. 24, 2025) (hereinafter VA Form

21-526EZ). The form’s instructions list 12 variations of

“compensation” benefits covered by this form. Id at 1.

Although pension is not one of those covered benefits, the

length and title of the form, combined with the historic

interchangeability of terms and the vernacular definitions

of “compensation” and “pension” can, understandably,

cause confusion. That confusion is only heightened for

those veterans whose service left them with cognitive

disabilities.

Additionally, when a pro se veteran reviews VA

Form 21-526EZ, the veteran may use a vernacular

understanding of the form’s language to determine

how to proceed. This creates a possibility of conflicting

definitions, as the VA’s language diverges from the plain

English meaning of key words. See e.g., Struck v. Brown,

9 Vet. App. 145, 154 (1996) (distinguishing the definition

of ‘insanity’ in 38 C.F.R. § 3.354 as unique to veterans

law); see also Zang v. Brown, 8 Vet. App. 246, 255–56

(1995) (addressing the insanity definition and chronicling

a “confusing tapestry of VA regulations” that it urges

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review and revision of). The VA provides a definition of

“compensation” that is, appropriately, narrower than

the colloquial understanding of that term. Compare 38

CFR §3.4(a) (defining VA disability compensation) to

Merriam-Webster Dictionary, Compensation, https://

www.merriam-webster.com/dictionary/compensation

(last visited Oct. 29, 2025) (defining compensation more

broadly). The colloquial understanding of “pension”

incorporates characteristics of, while differing from,

VA’s definitions of “pension” and “compensation.” See

Merriam-Webster Dictionary, Pension, https://www.

merriam-webster.com/dictionary/pension (last visited

Oct. 29, 2025) (defining “pension,” inter alia, as “a fixed

sum paid regularly. . . under given conditions to a person

following retirement from service”). These differing

definitions further highlight the challenges that veterans

face when determining which form(s) to file.

Congress and the law conflated veteran pensions and

service-connected compensation for almost one hundred

years. Vernacular understandings of “pension” and

“compensation,” combined with language in even modern

VA forms, compounds that confusion. In this context, it is

critical that 38 C.F.R. § 3.151(a) require VA adjudicators to

consider an application for compensation as an application

for pension, and vice versa. This interpretation is the

most reasonable reading of the regulation in light of the

“solicitude of Congress for veterans” and the rest of the

statutory scheme. See Henderson ex rel. Henderson v.

Shinseki, 562 U.S. 428 (2011) (quoting United States v.

Oregon, 366 U.S. 643, 647 (1961)); see also Roberson v.

Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (recognizing

the VA’s duty to “determine all potential claims raised by

the evidence”).

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CONCLUSION

Compensation and pension are crucial VA benefits.

For most of the VA’s history, those two benefits have been

intricately intertwined. Historically, an application for

one of these benefits has been treated as an application

for the other. Moreover, the VA has unique duties to assist

claimants that are especially critical for veterans with

cognitive impairment resulting from in-service injuries or

toxic exposure. In this “uniquely pro-claimant” system,

where the VA has an affirmative duty to award the greater

of those two benefits, it must also have a corresponding

responsibility to determine which is the appropriate

benefit to award. Accordingly, Amicus respectfully

requests that this Court grant the petition for certiorari

and correct the Federal Circuit’s interpretation of 38

C.F.R. § 3.151(a).

Respectfully submitted,

Seth M. Owens

Betty & Michael D. Wohl

Veterans Legal Clinic

Syracuse University

950 Irving Avenue

Syracuse, NY 13244

Rebecca L. Feldmann

Widener University

Commonwealth Law School

3800 Vartan Way

Harrisburg, PA 17110

Judy Clausen

Counsel of Record

Veterans and Servicemembers

Legal Clinic

University of Florida

Levin College of Law

309 Village Drive

P.O. Box 117620

Gainesville, FL 32611

(352) 273-0800

jclausen@law.ufl.edu

Counsel for Amicus Curiae