Opposition 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

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

D. JOHN SAUER,

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

CLAUDIA BURKE

AMANDA L. TANTUM

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Veterans must use a form prescribed by the Department of Veterans Affairs (VA) to seek compensation for

a service-connected disability or a pension. 38 U.S.C.

5101(a). The pertinent VA regulation provides that “[a]

claim by a veteran for compensation may be considered

to be a claim for pension; and a claim by a veteran for

pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the

claimant specifically elects the lesser benefit.” 38

C.F.R. 3.151(a). In 1987, petitioner completed the sections of the application related to eligibility for a nonservice-connected pension and indicated that the sections related to compensation for a service-connected

disability were not applicable. The VA treated petitioner’s form as an application for a pension and granted

pension benefits. The question presented is as follows:

Whether 38 C.F.R. 3.151(a) gives the VA discretion

to determine whether a veteran is seeking a pension or

compensation for a service-connected disability.

(I)

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1

Jurisdiction ...................................................................................... 1

Statement ......................................................................................... 2

Argument ......................................................................................... 8

Conclusion ...................................................................................... 18

TABLE OF AUTHORITIES

Cases:

Arellano v. McDonough, 598 U.S. 1 (2023) .................... 15, 16

Biden v. Texas, 597 U.S. 785 (2022) ........................................ 9

Chickasaw Nation v. United States,

534 U.S. 84 (2001) ................................................................. 16

D. Ginsberg & Sons, Inc. v. Popkin,

285 U.S. 204 (1932) ............................................................... 12

Duncan v. Walker, 533 U.S. 167 (2001) ................................ 10

EEOC v. Federal Labor Relations Auth.,

476 U.S. 19 (1986) ................................................................. 14

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ....................... 9

Henderson v. Shinseki, 562 U.S. 428 (2011) ........................ 15

Kisor v. Wilkie, 588 U.S. 558 (2019) ............................... 14, 15

Leocal v. Ashcroft, 543 U.S. 1 (2004) ...................................... 9

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ............................................................... 15

Rudisill v. McDonough, 601 U.S. 294 (2024)................. 15, 16

Stewart v. Brown, 10 Vet. App. 15 (1997)......................... 6, 11

United States v. John Doe, Inc. I, 481 U.S. 102 (1987) ...... 13

United States v. Johnston, 268 U.S. 220 (1925) .................. 12

United States v. Williams, 504 U.S. 36 (1992) .................... 12

(III)

IV

Statutes, regulations, and rule:

Page

38 U.S.C. 5101(a)(1)(A) ............................................................. 2

38 U.S.C. 5103A ....................................................................... 13

38 U.S.C. 5103A(a)(1) .............................................................. 13

38 C.F.R.:

Section 3.103(a) ............................................................ 13, 14

Section 3.151 ........................................................................ 2

Section 3.151(a) ........................................... 2, 4, 6-12, 15-17

Section 3.151(a) (1987) ........................................................ 4

Section 3.152(b)(1) ......................................................... 7-10

Section 3.159 ...................................................................... 13

Section 3.159(b)(1) ............................................................. 13

Section 3.159(c) .................................................................. 14

Section 3.303(a) .................................................................. 10

Sup. Ct. R. 10 ........................................................................... 16

Miscellaneous:

Black’s Law Dictionary (12th ed. 2024) ............................... 10

Department of Veterans Affairs (VA):

Form 21-526 (Sept. 2009) ................................................. 17

Form 21-526EZ (Nov. 2022) ............................................ 17

Form 21P-527EZ (Feb. 2023) .......................................... 17

In the Supreme Court of the United States

No. 25-482

JULIEN P. CHAMPAGNE, PETITIONER

v.

DOUGLAS A. COLLINS,

SECRETARY OF VETERANS AFFAIRS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-15a)

is reported at 122 F.4th 1325. The decision of the

United States Court of Appeals for Veterans Claims

(Pet. App. 16a-34a) is available at 2022 WL 2663589.

The order of the Board of Veterans’ Appeals (Pet. App.

35a-56a) is available at 2020 WL 8373200.

JURISDICTION

The judgment of the court of appeals was entered on

December 6, 2024. A petition for rehearing was denied

on June 3, 2025 (Pet. App. 1a-2a). On August 6, 2025,

the Chief Justice extended the time within which to file

a petition for a writ of certiorari to and including October 2, 2025. On September 29, 2025, the Chief Justice

further extended the time to and including October 16,

2

2025, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

The Board of Veterans’ Appeals (Board) granted petitioner service-connected compensation for cerebellar

degeneration resulting from service-connected malaria,

effective as of the date (July 14, 2003) when petitioner

first sent the Department of Veterans Affairs (VA) correspondence that it construed as a service-connection

claim for his cerebellar degeneration. Pet. App. 35a56a. After petitioner appealed, seeking an earlier effective date, the United States Court of Appeals for Veterans Claims (Veterans Court) affirmed the Board’s determination. Id. at 16a-34a. The United States Court

of Appeals for the Federal Circuit (court of appeals)

then affirmed the decision of the Veterans Court. Id. at

3a-15a.

1. Congress has provided that (with the exception of

survivor benefits) “in order for benefits to be paid or

furnished to any individual under the laws administered

by the Secretary” of Veterans Affairs, the applicant

must file “a specific claim in the form prescribed by the

Secretary.” 38 U.S.C. 5101(a)(1)(A). For more than

four decades, the VA has implemented that statutory

directive through regulations such as 38 C.F.R. 3.151,

which sets out the process by which the VA will receive

and evaluate claims for pensions or compensation for

service-connected disabilities. As relevant here, Section 3.151(a) provides that “[a] claim by a veteran for

compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. The greater

benefit will be awarded, unless the claimant specifically

elects the lesser benefit.” 38 C.F.R. 3.151(a).

3

Consistent with its regulation, the VA issued a form

entitled “Veteran’s Application for Compensation or

Pension.” E.g., C.A. App. 21-24. That form included

questions relevant to each type of benefit offered, such

as “income received and expected from all sources” (for

pension purposes) and “hospitals where you were

treated for any sickness, injury or disease” (for servicerelated-disability purposes). Id. at 21, 23 (capitalization

altered). The form also directed the applicant to complete (or not to complete) certain sections depending on

the type(s) of benefit for which he claimed eligibility.

Id. at 22-23.

2. a. From December 1953 until December 1956,

petitioner served honorably on active duty in the United

States Marine Corps. Pet. App. 4a. At one point during

that term of service, petitioner received treatment for

malaria. C.A. App. 32. His examination upon separation from the Marine Corps did not reveal any “residuals” (i.e., persistent symptoms or aftereffects) of malaria. Ibid.

b. In September 1987, petitioner submitted a Veteran’s Application for Compensation or Pension. Pet.

App. 4a, 41a; C.A. App. 21-24. Petitioner provided the

“net worth of veterans and dependents” on a section

(Item 33) that the form instructed “should be completed

ONLY if you are applying for non-service-connected

pension.” C.A. App. 23. In a separate section (Item 24)

that inquired into the “nature of the sickness, disease or

injuries for which the claim is made and date each began,” petitioner responded “ce[r]e[b]ellar d[e]generative disorder” but did not list any dates. Id. at 22. Petitioner also included a July 1986 statement from a physician attesting that he “has a cerebellar degenerative

4

disorder and has slurred speech [and] balance problems

due to that.” Pet. App. 18a.

Lower on the form, Items 26, 27, and 28 requested

information about treatment the applicant had received

for disability or sickness, either “during or since your

service.” C.A. App. 22-23. The form explained that

“Items 26, 27 and 28 need NOT be completed unless you

are now claiming compensation for a disability incurred

in service.” Id. at 22. Petitioner entered “N/A” as to

each of those items. Id. at 22-23.

Like the current regulation, the version of Section

3.151(a) that was in effect at that time stated that “[a]

claim by a veteran for compensation may be considered

to be a claim for pension; and a claim by a veteran for

pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the

claimant specifically elects the lesser benefit.” 38

C.F.R. 3.151(a) (1987). The VA Regional Office construed petitioner’s submission as an application for pension only, not as additionally seeking compensation for

a service-connected disability. Pet. App. 5a. Accordingly, in September 1987, the VA informed petitioner

that it had received his “application for pension benefits.” C.A. Supp. App. 2. And in December of that year,

the VA granted petitioner’s claim for a $517 monthly

pension. C.A. App. 29; Pet. App. 5a. That decision made

no reference to cerebellar degeneration or to compensation for any other disability. C.A. App. 29. Petitioner

did not appeal the VA’s decision. Pet. App. 18a.

c. In September 1999, petitioner filed a claim seeking a determination of service connection for malaria

and any residuals caused by malaria. Pet. App. 18a. In

July 2002, the VA Regional Office granted service con-

5

nection for petitioner’s malaria but assessed a non-compensable rating, explaining that there was no evidence

of disabling malaria residuals. Id. at 5a, 19a, 42a-43a;

C.A. App. 31-33. On July 14, 2003, petitioner filed a Notice of Disagreement with the non-compensable rating,

asserting that doctors had told him that his malaria and

high fever could have caused his speech and balance disorders. Pet. App. 19a, 43a.

Over the next several years, the VA “issued several

decisions and conducted significant development” on

petitioner’s disability claim. Pet. App. 20a. Ultimately,

in September 2013, the Board determined that petitioner’s cerebellar degeneration qualified as serviceconnected. C.A. App. 51. The Board explained that the

available evidence was “in a state of equipoise” as to

whether petitioner’s cerebellar degeneration had in fact

resulted from the malaria he contracted during service,

and that the agency was resolving that question in petitioner’s favor. Ibid. The VA Regional Office then implemented the Board’s decision, assigning a 100% disability rating and an effective date of February 3, 2005.

Ibid. Consistent with that determination, petitioner received a $250,000 retroactive benefit payment. C.A.

Supp. App. 4-5.

d. Petitioner disputed the February 3, 2005, effective date, contending that he should be compensated beginning as early as September 1987, when he had first

submitted his Application for Compensation or Pension.

Pet. App. 5a-6a. The VA Regional Office granted petitioner’s request in part, revising his effective date to

July 14, 2003—the date he had submitted a Notice of

6

Disagreement as to the non-compensable rating.* Id.

at 6a; C.A. App. 40-43.

In October 2020, the Board denied petitioner’s request for a September 1987 effective date. Pet. App. 6a.

The Board determined that petitioner’s original 1987

application had not included an unadjudicated serviceconnected-disability-compensation claim, but rather

had sought only pension benefits. Id. at 6a, 17a. Specifically, the Board found that, “[i]n light of the sections

[petitioner] did complete and the ones in which he only

entered ‘N/A’ there is no suggestion of an intention on

[petitioner’s] part to make a claim for service connected

disability benefits [i.e., compensation] in addition to the

non-service connected pension benefits.” Id. at 41a.

e. The Veterans Court affirmed the Board’s denial

of an earlier effective date. Pet. App. 16a-34a. The

court determined that, under 38 C.F.R. 3.151(a), the

“VA may consider a claim for pension to include a claim

for compensation, but it is not required to do so.” Pet.

App. 23a. The court relied on its earlier decision in

Stewart v. Brown, 10 Vet. App. 15 (1997), which had

read Section 3.151(a)’s permissive language to mean

that “the Secretary has to exercise his discretion under

the regulation in accordance with the contents of the application and the evidence in support of it,” id. at 18.

The court concluded that “[t]he Board did so here”

when the Board determined that petitioner’s 1987 application had indicated that he was seeking only a pension and not any service-connected-disability benefits.

Pet. App. 23a.

* In this Regional Office decision, as well as in the Board and Veterans Court decisions, petitioner’s condition is referred to as “cerebral” (rather than “cerebellar”) degeneration. C.A. App. 40-43; Pet.

App. 17a, 35a.

7

3. The court of appeals affirmed. Pet. App. 3a-15a.

The court rejected petitioner’s assertion that 38 C.F.R.

3.151(a) required the VA to treat his 1987 application as

a claim for both pension benefits and disability compensation. Pet. App. 8a. The court explained that the language of 38 C.F.R. 3.151(a)—specifically, the word

“may” used in its second sentence—“is a permissive

word, not a command.” Pet. App. 10a. Accordingly, the

court determined that “[t]he plain language of [Section]

3.151(a) * * * establishes that the VA is allowed, but

not required, to consider a pension claim as a compensation claim, and vice versa.” Id. at 11a.

Petitioner’s contrary reading “relie[d] primarily on

the third sentence of the regulation”—which states that

“ ‘[t]he greater benefit will be awarded, unless the

claimant specifically elects the lesser benefit’ ”—to deprive the VA of the discretion conferred by the second

sentence. Pet. App. 11a-12a (citation omitted). The

court of appeals rejected that argument, noting that petitioner’s reading “would effectively have us rewrite the

plain language of [Section] 3.151(a) from ‘may be considered’ to ‘will be considered.’ ” Id. at 12a. That atextual gloss was not warranted, the court explained, because the third sentence’s “specific[] elec[tion]” language served a “simpl[e] function[]” consistent with the

plain text: “provid[ing] the veteran with the ability to

choose which benefit he wishes to elect when the VA

evaluates his claim for both pension and compensation.”

Ibid. (brackets and citation omitted).

The court of appeals also found support for its interpretation in “[t]he overall regulatory scheme.” Pet.

App. 13a. An adjacent VA regulation governs “claim[s]

by a surviving spouse or child for compensation or dependency and indemnity compensation.” 38 C.F.R.

8

3.152(b)(1). Section 3.152(b)(1) mirrors the structure of

Section 3.151(a) except that the former uses the word

“will” rather than “may,” directing that a survivor’s

compensation or dependency claim “will also be considered to be a claim for death pension and accrued benefits,” and vice versa. Ibid. In the court’s view, the different language used in these otherwise-parallel provisions demonstrates that “if the VA intends to impose a

requirement on itself, it does so with compulsory language.” Pet. App. 13a.

Finally, the court of appeals identified “no basis to

apply” the “pro-veteran canon of interpretation” because it could “find no ‘interpretive doubt’ ” as to the import of the regulation’s plain language. Pet. App. 14a.

The court accordingly applied the plain text of Section

3.151(a), and it upheld the VA’s decision to treat petitioner’s 1987 application as an application for pension.

Ibid.

ARGUMENT

Petitioner challenges (Pet. 18-36) the Federal Circuit’s interpretation of 38 C.F.R. 3.151(a), which permits the VA, when reviewing a veteran’s Application for

Compensation or Pension, to determine whether the

veteran is requesting consideration for disability-related

compensation or for a pension unrelated to a serviceconnected disability, or for both. The court of appeals

correctly interpreted the regulation, and its decision

does not conflict with any decision of this Court or of

another court of appeals. In addition, the petition for a

writ of certiorari rests on a new legal theory that petitioner did not advance below and that the Court should

not consider in the first instance. In recent years, moreover, the VA has modified the relevant benefits applica-

9

tion in a manner that diminishes the prospective importance of the question presented. Further review is

not warranted.

1. The court of appeals correctly interpreted 38

C.F.R. 3.151(a) to afford the VA discretion in construing

veterans’ applications for benefits. That determination

was faithful to the plain text of the regulation and consistent with the broader regulatory context. See Leocal

v. Ashcroft, 543 U.S. 1, 9 (2004) (“[W]hen interpreting a

statute * * * we construe language * * * in light of the

terms surrounding it.”). None of petitioner’s contrary

arguments—including those raised for the first time

here—demonstrates an error in the decision below.

a. Section 3.151(a) provides, inter alia, that “[a]

claim by a veteran for compensation may be considered

to be a claim for pension; and a claim by a veteran for

pension may be considered to be a claim for compensation.” 38 C.F.R. 3.151(a). “The word ‘may’ clearly connotes discretion.” Biden v. Texas, 597 U.S. 785, 802

(2022) (citation omitted); see Fogerty v. Fantasy, Inc.,

510 U.S. 517, 518 (1994) (“The word ‘may’ in [a statute

governing attorney’s fees] clearly connotes discretion in

awarding such fees, and an automatic award would pretermit the exercise of that discretion.”). The court of

appeals correctly understood the regulation to provide

that “the VA may exercise its discretion to consider a

claim for a pension to also be a claim for compensation,

and vice versa, but the VA is not required to do so.” Pet.

App. 10a.

As the court of appeals correctly recognized, Pet.

App. 13a, that interpretation of Section 3.151(a) is consistent with the broader regulatory context. Specifically, 38 C.F.R. 3.152(b)(1), which relates to survivors’

claims arising after a veteran’s death, states that “[a]

10

claim by a surviving spouse or child for compensation or

dependency and indemnity compensation will also be

considered to be a claim for death pension and accrued

benefits” and vice versa. 38 C.F.R. 3.152(b)(1) (emphasis added). Given the similar subject matter, close proximity, and parallel structure of Sections 3.151(a) and

3.152(b)(1), the court correctly inferred from the mandatory term “will” in the latter provision that, “if the VA

intends to impose a requirement on itself, it does so with

compulsory language.” Pet. App. 13a. And “ ‘where [the

drafting body] includes particular language in one section of a [regulation] but omits it in another section of

the same [regulation], it is generally presumed that [the

drafter] acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Duncan v. Walker, 533

U.S. 167, 173 (2001) (brackets and citations omitted).

The court of appeals’ determination is also consistent

with another nearby provision, 38 C.F.R. 3.303(a). Section 3.303(a) requires that service connection (when unrelated to a statutory presumption of connection) must

be established “by evidence” “affirmatively showing inception or aggravation during service.” Ibid. Because

an “affirmative[] showing,” ibid., requires evidence

“[s]upporting the existence of [the requisite] facts,”

Black’s Law Dictionary 72 (12th ed. 2024) (defining

“Affirmative”), Section 3.303(a) is sensibly understood

to require the claimant to make a threshold claim of service connection in order to receive an evaluation of eligibility for a service-connected benefit, such as disability compensation. That regulation accordingly buttresses the court of appeals’ determination that “the VA

is not required to” construe every application as both “a

claim for a pension * * * [and] a claim for compensation.” Pet. App. 10a.

11

b. Petitioner’s counterarguments do not identify

any error in the court of appeals’ understanding of 38

C.F.R. 3.151(a).

i. The petition for a writ of certiorari reflects an interpretation of Section 3.151(a) that petitioner did not

advance at any previous stage of this litigation. Petitioner argued below that the VA must consider every

application for either pension or service-connected disability compensation as an application for both benefits,

contending that 38 C.F.R. 3.151(a) “gives no ‘discretion’

to the Secretary ‘in determining how to construe such

claims.’ ” Pet. C.A. Br. 11 (citation omitted). Before this

Court, however, petitioner asserts only that the VA

lacks “unbounded discretion,” and that the agency

“must * * * process[] a disability claim as a claim for

both pension and compensation if the veteran has a possible entitlement to both pension and compensation eligibility.” Pet. 19. Petitioner now concedes (ibid.) that

“[t]his does not mean the VA is required to conduct a compensation and pension benefits analysis in every case.”

Petitioner thus appears to agree with the court of appeals’ conclusion that the VA has discretion when construing applications for benefits. To be sure, the Federal Circuit also appropriately recognized the “possibility that the Veterans Court could find certain exercises

of VA discretion under [Section] 3.151(a) [to] constitute

an abuse of [its] discretion,” if (for example) “ ‘the record was replete with evidence showing that the veteran

qualified for disability compensation.’ ” Pet. App. 11a

n.3 (quoting Stewart v. Brown, 10 Vet. App. 15, 18-19

(1997)). But petitioner’s new argument boils down to a

disagreement with the court’s application of that standard to his case—the type of factbound contention that

would not warrant this Court’s review even if it had

12

been preserved below. See United States v. Johnston,

268 U.S. 220, 227 (1925) (“We do not grant a certiorari

to review evidence and discuss specific facts.”); United

States v. Williams, 504 U.S. 36, 41 (1992) (This Court’s

“traditional rule * * * precludes a grant of certiorari

* * * when the question presented was not pressed or

passed upon below.”).

ii. To the extent petitioner renews some form of the

argument he made below, his contention lacks merit. In

particular, the court of appeals correctly rejected petitioner’s assertion that the third sentence of Section

3.151(a) should be interpreted to mandate the VA’s consideration of every claim for pension to also be a claim

for compensation, and vice versa. Pet. App. 11a-12a.

That sentence provides that “[t]he greater benefit will

be awarded, unless the claimant specifically elects the

lesser benefit.” 38 C.F.R. 3.151(a). The court interpreted the election-of-benefits provision in harmony

with the rest of the regulation by “read[ing] the third

sentence * * * as providing the rule of decision for

those instances when the VA considers both types of

benefits.” Pet. App. 12a. The court’s reading was consistent with the “cardinal rule” that, “if possible, effect

shall be given to every clause and part of a [provision].”

D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208

(1932). The court thus appropriately declined petitioner’s invitation to “rewrite the plain language of

[Section] 3.151(a) from ‘may be considered’ to ‘will be

considered.’ ” Pet. App. 12a.

Petitioner asserts (Pet. 16) that the court of appeals

implausibly construed Section 3.151(a)’s third sentence

“as speaking only to the highly-unlikely scenario in

which a destitute and disabled veteran applies for both

compensation and pension benefits and then specifically

13

elects the lesser monetary award at the end of a yearslong VA claims process.” That is wrong twice over.

First, the court of appeals did not limit the third sentence to situations in which the veteran applies for both

compensation and pension benefits. Rather, the court

recognized the VA’s discretion to determine whether

the veteran intended to seek only one particular benefit

or both benefits. Second, there is nothing inherently

implausible—much less “so absurd or contrary * * * as

to call into question [the court’s] construction of the

plain meaning,” United States v. John Doe, Inc. I, 481

U.S. 102, 110 (1987)—about giving a veteran who is eligible for both benefits the right to elect between them.

For example, a veteran might prefer to receive a pension if an award of VA disability benefits would limit his

receipt of disability benefits from another source.

iii. Finally, petitioner contends (Pet. 6-7, 20) that the

court of appeals should have construed “the third sentence [a]s a specific application of the VA’s duty to affirmatively assist veterans in developing all available

claims, and to maximize the benefit awarded.” In support of that theory, petitioner invokes (ibid.) the VA’s

duty to maximize benefits under 38 C.F.R. 3.103(a) and

its duty to assist veterans in substantiating claims under 38 U.S.C. 5103A and 38 C.F.R. 3.159. Each of those

provisions, however, is triggered by a veteran’s submission of a claim; they do not require the VA to evaluate

eligibility for benefits that the veteran has not sought.

See 38 U.S.C. 5103A(a)(1) (“The Secretary shall make

reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for

a benefit under a law administered by the Secretary.”);

38 C.F.R. 3.159(b)(1) (“[W]hen VA receives a complete

or substantially complete initial or supplemental claim,

14

VA will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the

claim.”); 38 C.F.R. 3.159(c) (“VA has a duty to assist

claimants in obtaining evidence to substantiate all substantially complete initial and supplemental claims.”);

38 C.F.R. 3.103(a) (“[I]t is the obligation of VA to assist

a claimant in developing the facts pertinent to the claim

and to render a decision which grants every benefit that

can be supported in law while protecting the interests

of the Government.”).

In the proceedings below, moreover, petitioner failed

to develop any argument premised on the VA’s duty to

assist veterans in specified circumstances. See Pet.

App. 26a n.62 (Veterans Court’s finding that this “argument is undeveloped” and would not be “consider[ed]

further” because petitioner “only makes generic citations to the laws establishing VA’s duties to notify and

assist” without “apply[ing] any specific part of [S]ections 5103 or 5103A, or [Section] 3.159, to the facts of

his claim”); id. at 11a n.3 (court of appeals’ finding that,

while “the VA’s statutory duty to assist, as set out in

[Section] 5103A, may require the VA to consider a pension claim as a claim for both pension and compensation

benefits” “under certain circumstances,” petitioner

“does not argue that such circumstances are present

here”). Petitioner offers no reason for this Court to depart from its “normal practice * * * to refrain from addressing issues not raised in the Court of Appeals.”

EEOC v. Federal Labor Relations Auth., 476 U.S. 19,

24 (1986) (per curiam).

2. Petitioner also urges (Pet. 33-36) this Court to

grant certiorari to “resolv[e] the role of the veterans

canon in the interpretation of veterans’ benefit laws” in

light of the Court’s decisions in Kisor v. Wilkie, 588 U.S.

15

558 (2019), and Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024). That course is not warranted.

In the proceedings below, the government did not invoke, and the court of appeals did not apply, any form

of deference to the VA’s interpretation of Section 3.151(a).

Instead, the court resolved the interpretive question for

itself, in reliance on the regulation’s “plain language”

and its place in “[t]he overall regulatory scheme.” Pet.

App. 11a, 13a. Indeed, the court of appeals cited this

Court’s decision in Kisor only for the proposition that a

“ ‘court cannot wave the ambiguity flag just because it

[finds a] regulation impenetrable on first read.’ ” Id. at

12a (citation omitted; brackets in original). Consistent

with this Court’s admonition that “there is no plausible

reason for deference” where “uncertainty does not exist,” Kisor, 588 U.S. at 574-575, the court of appeals thus

did not defer to the VA’s interpretation of Section

3.151(a).

The court of appeals likewise did not err in declining

to apply the pro-veteran canon to unambiguous regulatory text. The pro-veteran canon, which holds that

“provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor,”

Henderson v. Shinseki, 562 U.S. 428, 441 (2011) (citation omitted), has no relevance where the case can be

“resolve[d] * * * on statutory text alone,” Rudisill v.

McDonough, 601 U.S. 294, 314 (2024); see Arellano v.

McDonough, 598 U.S. 1, 14 (2023) (declining to apply

pro-veteran canon to unambiguous statutory language

because “the nature of the subject matter cannot overcome text and structure”). Because “the statutory text

and traditional tools of statutory interpretation” are adequate to resolve most cases, members of this Court

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have recognized “the canon’s seemingly nonexistent impact on this Court's decisions.” Rudisill, 601 U.S. at 316

(Kavanaugh, J., concurring); id. at 329 (Thomas, J., dissenting). But whatever utility the pro-veteran canon

may have in a case where the relevant provision is genuinely ambiguous, it cannot carry the day where, as

here, text and context clearly point the other way. Arellano, 598 U.S. at 13-14; see Chickasaw Nation v. United

States, 534 U.S. 84, 94 (2001) (“[C]anons are not mandatory rules,” but instead “guides * * * designed to help

judges determine the Legislature’s intent as embodied

in particular statutory language.”). The court of appeals thus correctly concluded that “no basis [exists] to

apply the pro-veteran canon of interpretation” to Section 3.151(a), whose “plain language and * * * context

in the regulatory scheme as a whole unambiguously establish that the VA has discretion to determine that a

veteran is solely seeking pension or compensation benefits.” Pet. App. 14a.

3. Even if petitioner could identify some error by the

court of appeals, this case would not satisfy any of the

Court’s traditional certiorari criteria. Sup. Ct. R. 10.

Petitioner does not contend that the decision below conflicts with any decision of this Court or of another court

of appeals. And as discussed above (see pp. 11-12, supra), the petition proposes an interpretation of the regulation that was neither pressed nor passed upon below.

Petitioner asserts (Pet. 3) that the question presented warrants review because it will affect a “significant number[] of disabled veterans” who are potentially

eligible for both compensation and pension benefits.

But there is no reason to assume that veterans who believe their disabilities are connected to their prior military service will fail to indicate as much (and provide

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accompanying evidence) when applying for benefits.

When a particular veteran does not assert such an entitlement, neither Section 3.151(a) nor any other regulatory or statutory provision requires the VA to develop

a potential claim to service connection that the veteran

has not pursued. And if a veteran believes that the VA

has misunderstood the benefit that he was seeking

through his application, he can alert the VA to that

fact—something petitioner failed to do. See p. 4, supra.

Finally, the VA’s revision of its benefits application

in the decades since petitioner submitted his form is

likely to diminish the prospective importance of the

question presented. In 2009, the VA retitled the relevant form “Application for Compensation and/or Pension,” and it added a new Item 1 asking “for what benefit are you applying,” with the options of “compensation,” “pension,” and “both compensation and pension.”

VA Form 21-526 (Sept. 2009). And by 2023, the VA had

adopted separate applications for pension (VA Form

21P-527EZ) and compensation for a service-connected

disability (VA Form 21-526EZ). Accordingly, to the extent petitioner believes that the VA’s previous use of the

same application for both types of benefits created “a

‘trap for the unwary,’ ” Pet. 18 (citation omitted), subsequent agency action has obviated any such concerns.

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

CLAUDIA BURKE

AMANDA L. TANTUM

Attorneys

DECEMBER 2025