Richard C. Bareford v. Denis McDonough ( 2022 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4633
RICHARD C. BAREFORD, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued January 14, 2021 Decided February 28, 2022)
Jay Tymkovich, with whom Stephen B. Kinaird was on the brief, both of Washington,
D.C., for the appellant.
Nathan P. Kirschner, with whom William A. Hudson, Jr., Principal Deputy General
Counsel; Mary Ann Flynn, Chief Counsel; and Carolyn F. Washington, Deputy Chief Counsel, all
of Washington, D.C., were on the brief for the appellee.
Before BARTLEY, Chief Judge, and PIETSCH and FALVEY, Judges.
BARTLEY, Chief Judge, filed the opinion of the Court. FALVEY, Judge, filed an opinion
concurring in part and dissenting in part.
BARTLEY, Chief Judge: Appellant Richard C. Bareford appeals through counsel a July
1, 2019, Board of Veterans' Appeals (Board) decision denying entitlement to a Government-
furnished headstone or marker to memorialize veteran Roy H. Anderson, based on the Board's
finding that Mr. Bareford was not a proper applicant for that benefit. Record (R.) at 3-6. This
appeal is timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). This matter was referred to a panel of the Court to address Mr. Bareford's
contention that VA impermissibly restricts, through regulation, who is authorized to apply for a
Government-furnished headstone or marker on behalf of an eligible veteran, in excess of the
authority conferred on VA by the enabling statute, 38 U.S.C. § 2306. 1 For the reasons stated
1
When this matter was briefed and argued before the Court, VA's definitions of proper applicants for burial
and memorial headstones and markers were codified at 38 C.F.R. § 38.600(a)(1) and (2) (2019). As of September 7,
2021, the definitions are codified at 38 C.F.R. § 38.630(c), for burial headstones and markers, and at § 38.631(c), for
memorial headstones and markers. References to the regulations herein have been updated as appropriate to reflect
the current codification.
below, the Court holds that there is a gap in section 2306 as to who may apply for Government-
furnished headstones and markers, but that § 38.631(c) impose arbitrary and capricious restrictions
on who is eligible to apply for memorial headstones and markers. Accordingly, the Court will set
aside § 38.631(c), vacate the July 2019 Board decision, and remand the matter for additional
development, if necessary, and readjudication consistent with this decision.
I. FACTS2
On May 11, 1933, President Franklin Delano Roosevelt signed Executive Order 6129,
directing that 25,000 World War I veterans be enrolled in a separate part of the Emergency
3 , 4
Conservation Work (ECW) program. Available at
http://www.fdrlibrary.marist.edu/_resources/images/eo/eo0002.pdf. Under the auspices of the
Veterans Work Program, approximately 700 veterans were sent to the Florida Keys to build
bridges to complete a highway between Key West and the mainland. Florida Hurricane Disaster:
Hearings on H.R. 9486 Before the H. Comm. on World War Veterans' Legislation [hereinafter
Hearings], 74th Cong. 6 (1935) (statement of Rep. J. Hardin Peterson, available at
https://babel.hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq=10; id. at 33
(statement of Rep. J. Mark Wilcox; id. at 50-51 (statement of Julius F. Stone, Jr., Works Progress
Admin.); id. at 110 (statement of Conrad Van Hyning, Adm'r, Fed. Emergency Relief Admin.
(FERA)); 75 War Veterans in Gale Death List, N.Y. TIMES, Sept. 4, 1935, at 4, available at
https://timesmachine.nytimes.com/timesmachine/1935/09/04/93481926.html?pageNumber=4.
The project was intended to boost tourism and revitalize the economy in the Keys.
Matthew G. Hyland, The Florida Keys Hurricane House: Post-Disaster New Deal Housing,
91 FLA. HIST. Q. 212, 221, available at www.jstor.org/stable/43487496 [hereinafter Hyland]. The
2
In detailing the factual history of the 1935 hurricane and related events, which the parties do not dispute,
the Court takes judicial notice of, and cites to, relevant government documents, contemporaneous news accounts,
scholarly publications, and other sources of similar reputation. See Tagupa v. McDonald, 27 Vet.App. 95, 100 (2014)
("[T]he Court may take judicial notice of facts not subject to reasonable dispute if such facts are generally known or
are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.").
3
The ECW program was a precursor to the Civilian Conservation Corps. See JOHN C. PAIGE, THE CIVILIAN
CONSERVATION CORPS AND THE NATIONAL PARK SERVICE, 1933-1942: AN ADMINISTRATIVE HISTORY, ch. 1 (1995),
available at https://www.nps.gov/parkhistory/online_books/ccc/ccc1b.htm (last accessed Oct. 5, 2021).
4
All additional electronic sources were last accessed on October 5, 2021.
2
veterans assigned to the project were housed in three work camps on Lower Matecumba and
Windley Keys that were managed by the Federal Emergency Relief Administration. Id.On August 30, 1935, the Weather Bureau began publishing advisories about a tropical
storm strengthening in the Bahamas. Id. at 222. By September 2, 1935, it looked as though the
storm might affect the veteran work camps and FERA began to arrange for a rescue train to
transport the veterans from the work camps to the mainland. Id. 222-23. However, through a
series of misadventures, the train was delayed, and the veterans were not evacuated before the
storm arrived. Id. at 223; Willie Drye, The True Story of the Most Intense Hurricane You've Never
Heard Of, available at https://www.nationalgeographic.com/history/article/irma-most-intense-
hurricane-florida-keys-1935-history; Hurricane's Dead Dug Out of Debris, N.Y. TIMES, Sept. 6,
1935, at 1, 8 (quoting a Weather Bureau official as saying that ample notice of danger was provided
and a FERA administrator as contending that the weather reports did not indicate that evacuation
was necessary), available at
https://timesmachine.nytimes.com/timesmachine/1935/09/06/issue.html; Storm Inquiry to Centre
on Delay of Relief Train, N.Y. TIMES, Sept. 6, 1935, at 11, available at
https://timesmachine.nytimes.com/timesmachine/1935/09/06/93484269.html?pageNumber=11;
see also Ernest Hemingway, Who Murdered the Vets? A First-Hand Report on the Florida
Hurricane, THE NEW MASSES, Sept. 17, 1935, at 9 (questioning why the veterans were not
evacuated before the storm), available at https://www.unz.com/print/NewMasses-1935sep17-
00009/. When the rescue train finally arrived in the Keys, the passenger cars were blown off the
track. Hyland at 224; Ian Shapira, "Deaths Laid to Act of God": The Devastating 1935 Hurricane
that Surprised the Florida Keys, WASH. POST, Sept. 7, 2017, available at
https://www.washingtonpost.com/news/retropolis/wp/2017/09/07/deaths-laid-to-act-of-god-the-
devastating-1935-hurricane-that-surprised-the-florida-keys/.
The unnamed hurricane, one of only three Category 5 Atlantic hurricanes to make landfall
in the United States in nearly nine decades, see Maggie Astor, No, Hurricane Irma Won't Be a
"Category 6" Storm, N.Y. TIMES, Sept. 6, 2017, at A14, available at
https://www.nytimes.com/2017/09/06/us/hurricane-irma-category-six.html, killed over 250
veterans from the work camps, Hearings, 74th Cong. 332 (1935) (statement of Conrad Van
Hyning, Admin'r, FERA), available at
https://babel.hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq= 338&skin=2021.
3
President Roosevelt ordered that the veterans' bodies be transported "where the next of kin desired
and indicated military funerals and burial in Arlington National Cemetery at Washington for
some." Hurricane's Dead Dug Out of Debris, N.Y. TIMES, Sept. 6, 1935, at 8, available at
https://timesmachine.nytimes.com/timesmachine/1935/09/06/issue.html; see also 3 Inquiries Start
in Florida Deaths, N.Y. TIMES, Sept. 7, 1935, at 3, available at
https://timesmachine.nytimes.com/timesmachine/1935/09/07/issue.html (reporting that a Veterans
Bureau representative stated that public funeral services, with full military honors, would be held
for the deceased veterans and their bodies buried where directed by family members). Eighty
veterans whose bodies were recovered in the first few days after the hurricane were buried with
full military honors on September 7, 1935, in Woodlawn Cemetery, Miami, Florida. Hearings,
74th Cong. 332 (1935) (statement of Conrad Van Hyning, Admin'r, FERA), available at
https://babel. hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq=338&skin=2021.
But on September 6, 1935, Florida's Governor, David Sholtz, ordered that the remaining
bodies be cremated because of public health concerns. See Hearings, 74th Cong. 262-63 (1935)
(statement of Dr. J.T. Googe, Fla. Health Dep't), available at
https://babel.hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq=268&skin=2021;
3 Inquiries Start in Florida Deaths, N.Y. TIMES, Sept. 7, 1935, at 3, available at
https://timesmachine.nytimes.com/timesmachine/1935/09/07/issue.html; Cremations Begun in
Key Gale Area, N.Y. TIMES, Sept. 8, 1935, at 37, available at
https://timesmachine.nytimes.com/timesmachine/1935/09/08/93704680.html?pageNumber=37.
At least 168 veterans' bodies were cremated in the Keys. Hearings, 74th Cong. 332 (1935)
(statement of Conrad Van Hyning, Admin'r, FERA), available at
https://babel.hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq=338 &skin=2021.
Veteran and civilian dead were cremated together, and individual remains could not be separated.
See Hearings, 74th Cong. 386 (1935) (statement of George E. Ijams, Assistant Admin'r, Veterans'
Affairs), available at
https://babel.hathitrust.org/cgi/pt?id=mdp.39015049888574&view=page&seq=385&skin=2021.
Two years later, the commingled remains were interred in an Islamorada, Florida, memorial to all
victims of the 1935 hurricane; the interred veterans are not individually memorialized. See R. at
62; see also U.S. DEP'T OF THE INTERIOR, NAT'L PARK SERV., NAT'L REGISTER OF HISTORIC
4
PLACES, Florida Keys Memorial, available at
https://npgallery.nps.gov/pdfhost/docs/nrhp/text/95000238.PDF.
Roy H. Anderson was one of the veterans killed in the 1935 hurricane. He served
honorably in the U.S. Army from April 1918 to March 1919. R. at 80. His wife died in 1930 and
they had no children. R. at 63. He was assigned to one of the work camps on Lower Matecumbe
Key. Id. His body was located on October 10, 1936, and his cremated remains were commingled
with other veterans and civilians and interred in the Florida Keys Memorial in Islamorada. Id. No
other marker or memorial has been provided on his behalf. Id.In August 2017, Mr. Bareford requested that VA provide a Government-furnished
headstone or marker to memorialize Mr. Anderson. R. at 79. The application was co-signed by a
representative of the South Florida National Cemetery in Lake Worth, Florida, the cemetery that
agreed to accept delivery of the headstone or marker. Id. In September 2017, the VA National
Cemetery Administration (NCA) denied the request, explaining that Mr. Bareford was not a
recognized applicant under 38 C.F.R. §§ 38.630 and 38.631. R. at 77-78. Mr. Bareford filed his
Notice of Disagreement the following month. R. at 56-64. He asserted that §§ 38.630 and 38.631
are inconsistent with their enabling statute, 38 U.S.C. § 2306, because the statute "places no
restrictions whatsoever on who may apply for the benefit." R. at 57. He emphasized that the
veterans whose remains are interred in the memorial crypt in Islamorada are not individually
memorialized, either there or elsewhere. R. at 62.
The NCA issued a Statement of the Case in November 2017, again finding that Mr.
Bareford was not an authorized applicant. R. at 52-54. Mr. Bareford filed his Substantive Appeal
the same month. R. at 18-49. He noted that the director of Woodlawn Cemetery in Miami had
been permitted to apply for grave markers for the veterans whose bodies were recovered before
Governor Sholtz's cremation order and buried in unmarked graves in that location. R. at 41. He
further explained that he had requested that VA place a group memorial at the Islamorada
memorial for those interred within, but that his request was denied because VA indicated that it
can only place group memorials in national cemeteries. R. at 41. He stated that he had requested
that the Islamorada Village Council approve a veterans memorialization at the monument, but that
the Council declined to alter the monument to identify the individual veterans interred within. R.
at 44. He reported that he was able to locate family members to request memorials at the South
5
Florida National Cemetery for two veterans, which VA approved, but that the other veterans killed
in the 1935 hurricane and interred in the Islamorada memorial remain unmemorialized. R. at 45.
In the July 2019 Board decision on appeal, the Board found that it was bound as a matter
of law by the applicant limitations outlined in 38 C.F.R. § 38.600(a)(1)-(2) (2019) (now 38 C.F.R.
§§ 38.630(c) and 38.631(c)). R. at 4-6. To clarify, though the Board cited § 38.600(a)(1) (2019),
which concerns the definition of an applicant for a burial headstone and marker, the Board found:
"It is uncontroverted that the appellant is not a family member of the Veteran." R. at 4-5. Thus,
the Board made a finding that Mr. Bareford was not a proper applicant for a memorial headstone
or marker in accordance with the terms of § 38.600(a)(2) and implicitly denied him eligibility as
an applicant under that subsection. See generally 38 U.S.C. § 7104(a); Stern v. McDonough,
34 Vet.App. 51, 59 (2021) (citing Faust v. W., 13 Vet.App. 342, 353-56 (2000) (discussing when
the Board makes a finding in accordance with the terms of a regulation and how the Board's failure
to explicitly cite and discuss that regulation in its analysis is harmless when the "evidence
overwhelming shows" that entitlement to the benefit sought is precluded under that regulation)).
Because it found that Mr. Bareford does not meet the regulatory definition of a proper
applicant for a Government-furnished headstone or maker to memorialize Mr. Anderson, see R. at
5, the Board denied the claim, R. at 3. This appeal followed.
II. ANALYSIS
Congress has directed that "[t]he Secretary shall furnish, when requested," burial
headstones or markers for the unmarked graves of eligible individuals or, when the remains are
unavailable, "an appropriate memorial headstone or marker for the purpose of commemorating an
eligible individual." 38 U.S.C. § 2306(a), (b).5 VA has promulgated regulations restricting who
is authorized to request burial and memorial headstones and markers. For veterans whose remains
are identified and available, VA will provide a burial headstone or marker and applicants must be
either a family member; a personal representative (as defined in 38 C.F.R. § 3.600); a
representative of a congressionally chartered veterans service organization (VSO); a government
employee whose responsibilities include providing services to veterans and their families; anyone
legally responsible for the disposition of the veteran's remains or related matters; or, in the case of
5
The parties do not dispute that the veteran, Mr. Anderson, was an eligible individual as defined in section
2306.
6
veterans whose service ended before April 6, 1917, any individual. 38 C.F.R. § 38.630(c) (2021).
For veterans whose remains are unavailable or unidentified, VA will provide a memorial headstone
or marker, but only family members may apply. 38 C.F.R. § 38.631(c) (2021).
A. The Arguments
The parties agree that statutory subsections 2306(a) and (b) do not identify who is
authorized to request a burial or memorial headstone or marker, but they disagree as to what the
absence of explicit identification of who may request the same means.
Mr. Bareford argues that the plain language of the statute reflects Congress's unambiguous
intent that anyone may request a burial or memorial headstone or marker on behalf of a deceased
veteran; therefore, by imposing limits as to who may make such requests, §§ 38.630(c) and
38.631(c) conflict with statutory subsections (a) and (b). Appellant's Brief (Br.) at 15. In other
words, he contends that Congress said nothing on the matter because there is nothing to be said.
He asserts that statutory subsections (a) and (b) unambiguously provide that "'[t]he Secretary shall
furnish, when requested,' appropriate Government headstones or markers." Id. at 18. He
characterizes the statutory language as "mandatory" and therefore argues that there is "no gap to
be filled by agency regulation." Id. He observes that another portion of the statute, subsection (e),
clearly states that certain benefits for burial receptacles are only available to a veteran's survivors,
indicating that "Congress knew how to restrict the applicant pool . . . when that was its intent." Id.
at 20. Therefore, because statutory subsections (a) and (b) place no restriction on who may request
a Government headstone or marker, he contends that "[n]o reasonable construction of the statute
permits the Secretary to deny requests" for headstones or markers on the basis of the requestor's
identity and urges the Court to invalidate VA's attempt to limit applicant eligibility as codified in
§§ 38.630(c) and 38.631(c). Id. at 22.
In the alternative, Mr. Bareford asserts that §§ 38.630(c) and 38.631(c) are arbitrary and
capricious. With respect to § 38.630(c), he asserts that VA changed, without explanation, its
previous policy "from 1973 to 2009 that anyone with knowledge of the deceased veteran could
apply for headstones and markers." Id. at 23. He contends that the regulation "conflicts with
congressional intent by making it impossible to mark the graves of veterans who lack an
identifiable and cooperative family member." Id. at 27. As for § 38.631(c), he asserts that it "is
even more indefensible" because "VA had no cause to impose dramatically more stringent
restrictions upon applicants for memorial headstones and markers than upon applicants for burial
7
headstones and markers.'' Id. at 27. He disputes VA's contention that the purpose of memorial
headstones and markers is "solely to provide the family a place to mourn the dead," id., arguing
that "[n]othing in section 2306 remotely implies" that memorialization is solely for the benefit of
family, id. at 28. To ensure "the primacy of family wishes," Mr. Bareford suggests that VA
promulgate rules governing the priority of applicants. Id. at 30; see Reply Br. at 13.
As for Mr. Bareford's statutory interpretation argument, the Secretary responds that
"[s]ection 2306 is silent as to who may be an applicant, and therefore leaves a gap for the Secretary
to fill." Secretary's Br. at 6. The Secretary notes that a 1948 congressional act delegated the
responsibility and authority for providing Government-furnished headstones and markers for
unmarked graves to the Secretary of the Army, id. at 9, and that a 1958 amendment to that act
further specified that the Secretary of the Army was "authorized to prescribe such rules and
regulations with respect to the submission of applications for all Government headstones and
markers" requested under the provisions of that act, id. at 10 (quoting Act of Aug. 14, 1958, Pub.
L. No. 85-644, 75 Stat. 601, 602) (emphasis omitted). The Secretary contends that the language
of the 1958 amendment indicates that Congress delegated to the Army authority "to establish who's
a proper applicant." Id. at 12. The Secretary argues that in 1958, when Congress first gave the
Secretary of the Army the authority to prescribe regulations relating to headstones and markers,
the congressional "intent was clearly to give the families of deceased veterans a place to honor
their loved ones." Id. at 18-19.
The Secretary further asserts that, when Congress transferred authority over national
cemeteries and memorials to VA through the National Cemeteries Act of 1973, its failure to
explicitly identify proper applicants when it had the opportunity to do so implicitly or explicitly
delegated responsibility for that decision to VA. Id. Thus, the Secretary asserts, "section 2306's
silence as to 'who' may be a proper applicant left a gap for the Secretary to fill by regulation." Id.As to Mr. Bareford's regulatory interpretation argument, the Secretary asserts that neither
§ 38.630(c) nor § 38.631(c) is arbitrary and capricious. Id. at 12-21. He argues that the regulations
"represent[] a reasoned, and reasonable, line-drawing by VA." Id. at 19. The Secretary contends
that the regulations cannot be considered arbitrary because "VA considered [Mr. Bareford's]
specific comments during the notice and comment period prior to publishing the final version,"
and that any "particular policy choices in crafting the regulation [are in] its purview." Id. at 21.
8
Therefore, the Secretary argues, the Court should defer to VA's interpretation of section 2306. Id.
at 12-13.
B. Chevron Step One
When the Court interprets a statute, it looks to the statute's text and structure, as well as its
legislative history. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 843-46 (1984); Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007) (quoting McEntee
v. M.S.P.B., 404 F.3d 1320, 1328 (Fed. Cir. 2005) (noting that statutory interpretation "'begins
with the language of the statute, the plain meaning of which we derive from its text and its
structure'"). This analysis is colloquially known as Chevron step one.
When "the statutory language is unambiguous and 'the statutory scheme is coherent and
consistent,'" the Court's statutory inquiry ends, Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)
(quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)), and "the [C]ourt,
as well as the agency, must give effect to the unambiguously expressed intent of Congress,"
Chevron, 467 U.S. at 842-43. In other words, when the statute is unambiguous, the Court need
not proceed to step two in the Chevron analysis framework and, instead, "must enforce [the statute]
according to its terms." King v. Burwell, 576 U.S. 473, 486 (2015); see also Food Mktg. Inst. v.
Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (holding that when the first Chevron step
"yields a clear answer, judges must stop").
"It is only after finding a statutory ambiguity that courts may consider the possibility that
Congress delegated to an agency the power to fill a gap." Buffington v. McDonough, 7 F.4th 1361,
1368 (Fed. Cir. 2021) (O'Malley, J., dissenting) (citing United States v. Home Concrete & Supply,
LLC, 566 U.S. 478, 488 (2012)). "If Congress has explicitly left a gap for the agency to fill, there
is an express delegation of authority to the agency to elucidate a specific provision of the statute
by regulation." Chevron, 467 U.S. at 843-44; see Morton v. Ruiz, 415 U.S. 199, 231 (1974) ("The
power of an administrative agency to administer a congressionally created and funded program
necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly
or explicitly, by Congress."). Thus, when Congress leaves a gap in the statute, Congress delegates
authority to the Agency to fill that gap, for example by authorizing the Agency to implement
regulations pursuant to a formal administrative procedure called notice-and-comment. See United
States v. Mead Corp., 533 U.S. 218, 229-31 (2001); Chevron, 467 U.S. at 843-44. Under 38 U.S.C.
§ 501(a), Congress delegated to the Secretary the "authority to prescribe all rules and regulations
9
which are necessary or appropriate to carry out the laws administered by the Department and are
consistent with those laws."
With above framework in mind, the Court must first determine whether the statutory
language is silent or ambiguous as to the matter at issue. Chevron, 467 U.S. at 842-43. Whether
a statute is unambiguous or a gap exists for the agency to fill is a question of law that the Court
reviews de novo. See Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003) ("[I]nterpretation of
a statute or regulation is a question of law. . . .").
1. Guidance for Determining Whether There is a Gap
The first question in this case is whether the absence of an explicit indication as to who
may request a Government-furnished burial or memorial headstone or marker on behalf of a
veteran reflects either an unambiguous congressional intent that anyone may make a request or a
gap in the statute that Congress delegated to VA the authority to fill. To answer that question, it
is constructive to consider why courts have found, with respect to other statutes, that Congress left
a gap for the agency to fill and compare those statutes to section 2306.
In some cases, Congress used, but did not define, a critical statutory term, thus delegating
to the agency the authority to supply a definition. For example, in Cox v. McDonald, this Court
held that 38 U.S.C. § 1117 is ambiguous because it directed the Secretary to take certain actions
with respect to "the Southwest Asia theater of operations," but neither defined that term nor
explicitly directed the Secretary to provide a definition. 28 Vet.App. 318, 323 (2016). And in
Breniser v. Shinseki, the Court held that 38 U.S.C. § 1114(o) was ambiguous because it uses, but
does not define, the terms "condition" and "conditions"; therefore, Congress delegated to the
Secretary the authority to provide those definitions. 25 Vet.App. 64, 72 (2011). Similarly, in
Heino v. Shinseki, the Court held that, because 38 U.S.C. § 1722A(a)(2) does not define the term
"cost to the Secretary," it is silent or ambiguous as to how that term should be defined. 24 Vet.App.
367, 373 (2011).
In other cases, Congress expressly addressed part, but not all, of a particular process, either
explicitly or implicitly delegating to the agency the authority to regulate the remainder of that
process. For example, in 38 U.S.C. § 5112(b), Congress specified the effective date for the
discontinuance of disability benefits for veterans who are receiving active duty pay. But Congress
was silent as to the date benefits should recommence, thereby leaving a gap for the agency to fill.
Buffington v. Wilkie, 31 Vet.App. 293, 301 (2019), aff'd sub. nom. Buffington v. McDonough,
10
7 F.4th 1361 (Fed. Cir. 2021). Similarly, in 28 U.S.C. § 2412(d)(a)(B), Congress explicitly
imposed a deadline by which prevailing parties must file an Equal Access to Justice Act application
for attorney fees and expenses. But Congress said nothing about the time allowed for agency
response; consequently, it left a gap. Coley v. Wilkie, 32 Vet.App. 284, 288 (2020). In 38 U.S.C.
§ 5904, Congress expressly delegated to the Secretary the authority to specify the manner in which
attorneys file fee agreements with VA. Ravin v. Wilkie, 30 Vet.App. 310, 316 (2018), aff'd,
956 F.3d 1346 (Fed. Cir. 2020). In Lynch v. Wilkie, the Court held that 38 U.S.C. § 1313 provides
for VA death benefits to be paid to eligible children, but left a gap because it was "silent as to when
to evaluate whether a claimant is a 'child.'" 30 Vet.App. 296, 302 (2018). And in Jernigan v.
Shinseki, the Court held that Congress's explicit delegation to the Secretary of the authority to
prescribe claim forms reasonably encompassed the authority to prescribe the claim form
submission process, including creating a time limit for filing formal claims. 25 Vet.App. 220, 225-
26 (2012).
What the above cases have in common is that additional agency guidance was required
because the statute included a gap; a statute cannot be applied accurately and consistently when its
operative terms are not defined or its processes are only partially described.
2. Section 2306 Leaves a Gap
"[I]n a Chevron step-one analysis, we employ traditional tools of statutory construction and
examine 'the statute's text, structure, and legislative history, and apply the relevant canons of
interpretation.'" Heino v. Shinseki, 683 F.3d 1372, 1378 (Fed. Cir. 2012) (quoting Delverde, SrL
v. United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000). In other words, when considering whether
section 2306 is ambiguous, the Court cannot consider subsections (a) and (b), in their current form,
in isolation from the rest of the statute or its history. See Chevron, 467 U.S. at 843-46; Myore,
489 F.3d at 1211; Gardner v. Derwinski, 1 Vet.App. at 584, 586 (1991).
Subsection 2306(b)(1) provides: "The Secretary shall furnish, when requested, an
appropriate memorial headstone or marker for the purpose of commemorating an eligible
individual whose remains are unavailable." Subsection (c) discusses the material out of which
headstones and markers may be made when "furnished under subsection (a), (b), or (d) of this
section" and references how such a headstone or marker can be "requested by the person entitled
to request such headstone or marker." Subsection (c) does not explicitly state who is "the person
entitled to request such headstone or marker" furnished under subsection (a) or (b).
11
Mr. Bareford argues that any restriction on applicant entitlement in subsection (c) refers
solely to applicants under subsection (d), concerning requests for burial headstones or markers for
veterans buried in private cemeteries, because subsection (d) contains an explicit restriction that
the applicant "certif[y] to the Secretary that the headstone or marker will be placed" on the grave
or "as close as possible to the grave"; therefore, he argues, the phrase "person entitled to request"
does not relate to or restrict applicants under subsections (a) and (b). OA at 59:18-1:00:06,
Bareford v. McDonough, U.S. Vet. App. No. 19-4633 (oral argument held January 14, 2021); see
also Russello v. United States, 464 U.S. 16, 23 (1983) ("'Where Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'")
(quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)).
The Secretary argues that the phrase "person entitled to request" applies to subsections (a),
(b), and (d); that this language leaves a gap because, in describing some persons as "entitled" to
request a headstone or marker, Congress necessarily indicated that some individuals would be
excluded from that entitlement; that the undefined term in this instance is "the person entitled to
request such headstone or marker"; and that this gap represents a delegation to the Secretary of the
authority to restrict applicants under subsections (a) and (b). OA at 24:59-25:13.
To answer this question of whom the phrase "persons entitled to request" refers to, the
Court turns to the history of section 2306. The Secretary emphasizes that when Congress delegated
to the Secretary of the Army the authority to prescribe regulations relating to headstones and
markers, the congressional "intent was clearly to give the families of deceased veterans a place to
honor their loved ones." Sec. Br. at 18-19. But the National Cemeteries Act of 1973 (1973 Act)
transferred responsibility for the National Cemetery System from the Department of the Army to
what was then called the Veterans Administration. Pub. L. No. 93-43, § 1000, 87 Stat. 75 (June
18, 1973). The 1973 Act added to Title 38 a new section 906, Headstones and Markers, which
stated that the VA Administrator "shall furnish, when requested," burial and memorial headstones
and markers, and set no restrictions as to who was eligible to make such requests. Id. at 80 (setting
forth § 906(a) (for burial headstones or markers) and (b) (for memorial headstones or markers).
In October 1978, Congress revised section 906 to add subsection (c), specifying that "a
headstone or marker furnished under subsection (a) or (b)" may be fabricated out of certain
enumerated materials when "requested by the person entitled to request such headstone or marker."
12
Veterans' Housing Benefits Act of 1978, Pub. L. No. 95-476, 92 Stat. 1497, 1505 (Oct. 18, 1978).
If some persons are entitled to request headstones or markers furnished under subsections (a) and
(b), it inevitably follows that some are not; otherwise, the phrase "entitled to request" would be
rendered superfluous. See Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000) ("[C]anons of
construction . . . require us to give effect to the clear language of a statute and avoid rendering any
portions meaningless or superfluous."). Accordingly, the language of this revision, read in the
context of the statute as a whole, makes clear that Congress intended, when revising the statute in
1978, that some persons are entitled to request Government-furnished headstones and markers and
some are not.
The statute, today codified at § 2306(c), has been revised such that subsection (c) also
applies to an additional subsection (d) and reflects the elevation of VA to an executive department.
But nothing about these revisions suggests a change from the statutory amendments set forth in
1978: that a request for a Government-furnished headstone or marker under subsection (a) or (b)
must be made "by the person entitled to request such headstone or marker." However, Congress
has never defined the phrase "person entitled to request such headstone or marker." Because
Congress was silent as to who is entitled to request headstones or markers, it left a gap for the
agency to fill. See Chevron, 467 U.S. at 843-44; see also Buffington, 31 Vet.App. at 301; Cox,
28 Vet.App. at 323.
Accordingly, and in light of VA's gap-filling regulations implemented after notice-and-
comment, the Court turns now to step two of the Chevron analysis: whether the Agency's answer
for the gap is a reasonable one to which the Court must defer or whether the Agency's gap-filling
regulations are arbitrary, capricious, or manifestly contrary to the statute. See Chevron, 467 U.S.
at 844.
C. Chevron Step Two
Once it is determined that the statute in question is ambiguous and leaves a gap for the
agency to fill, under step two of Chevron the analysis turns to whether the agency's interpretation
of the statute, as reflected in the corresponding implementing regulations, is permissible. Id.. at
843. Courts will defer to an agency's "reasonable interpretation" of a statute. Id. at 844-45; see
also Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 58 (2011). If an
agency's choice of policy "'represents a reasonable accommodation of conflicting policies that
were committed to the agency's care by the statute, [the courts] should not disturb it unless it
13
appears from the statute or its legislative history that the accommodation is not one that Congress
would have sanctioned.'" Chevron, 467 U.S. at 845 (quoting United States v. Shimer, 367 U.S.
374, 382, 383 (1961)). However, the Court will hold unlawful and set aside regulations issued or
adopted by the Secretary when they are "arbitrary, capricious, an abuse of discretion or otherwise
not in accordance with law"; such regulations receive no Chevron deference. 38 U.S.C.
§ 7261(a)(3); see Mead Corp., 533 U.S. at 227; Chevron, 467 U.S. at 844; see also Mayo Found.,
56 U.S. at 53.
"'The scope of the Court's review under the 'arbitrary and capricious' standard is narrow
and a court is not to substitute its judgment for that of the agency.'" Evans v. McDonald,
27 Vet.App. 180, 189 (2014) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 30 (1983)), aff'd, 642 F. App'x 982 (Fed. Cir. 2016). But, under this
standard, an agency must "articulate a satisfactory explanation for its action including a 'rational
connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n, 463 U.S.
at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Here, the Court
must determine whether the Agency
has relied on factors which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise.
Id. And "[t]he reviewing court should not attempt itself to make up for such deficiencies; [it] 'may
not supply a reasoned basis for the agency's action that the agency itself has not given'." Id.(quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). Furthermore, when an agency changes
existing policies, the agency must show "that there are good reasons for the new policy" and must
provide "a reasoned explanation . . . for disregarding facts and circumstances that underlay or were
engendered by the prior policy." Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222 (2016)
(quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009)); see also Nat'l Cable
& Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 981 (2005) (holding that
agencies must "adequately explain[] the reasons for a reversal of policy").
1. § 38.631(c) Is at Issue
Mr. Bareford asserts that §§ 38.630(c) and 38.631(c) are both arbitrary and capricious.
Because the difference between the two is whether a veteran's remains are available for burial,
14
they cannot both apply to Mr. Bareford's claim. Thus, as a preliminary matter, the Court must
clarify whether Mr. Bareford seeks a burial headstone or marker for Mr. Anderson under 38 C.F.R.
§ 38.630 or a memorial headstone or marker under § 38.631.
In his initial August 2017 application, Mr. Bareford was clear that Mr. Anderson's remains
were cremated and comingled with others' remains, rather than buried, and that his remains are not
available for burial. R. at 79. In his October 2017 NOD, he asserted that VA's regulation regarding
memorial headstones and markers is arbitrary and capricious, R. at 56, arguing that there is no
reason to distinguish between eligible applicants for burial and memorial headstones and markers,
see R. at 59-60. In his November 2017 Substantive Appeal, he challenged VA's denial of
entitlement "to a memorial marker because the applicant is not a relative" and asserted that the
pertinent regulation is arbitrary and capricious. R. at 18. In his initial brief, Mr. Bareford contends
specifically that it is arbitrary and capricious to limit applicants for memorial headstones or
markers to family members. Appellant's Br. at 27. And at oral argument, he reiterated that he was
seeking a memorial marker, which only families may request under the current version of
§ 36.631(c). OA at 58:29-:49.
Accordingly, the Court concludes that the issue presented is whether 38 C.F.R. § 38.631(c),
which limits eligible memorial headstone or marker applicants to family of the veteran, is arbitrary
and capricious.
2. VA's Policy Explanations
Before 2005, the application process for requesting a VA-provided headstone or marker
was codified at 38 C.F.R. § 1.632, which stated simply that a form was required. In 2005, VA
relocated regulations pertaining to the NCA from Part 1 of Title 38 to Part 38. Relocation of
National Cemetery Administration Regulations, 70 Fed. Reg. 4768-01 (Jan. 31, 2005). As part of
that revision, the headstone or marker application process was relocated to 38 C.F.R. § 38.632; the
application process remained substantively the same, with submission of a VA form the only
requirement for ordering Government burial or memorial headstones or markers. Id. at 4773.
In January 2007, VA proposed a substantial revision to § 38.632 "to update ordering
procedures for headstones and markers" and to address requests for emblems of belief. Headstone
and Marker Application Process, 72 Fed. Reg. 2480-01 (Jan. 19, 2007). VA noted: "Congress has
authorized VA to promulgate all necessary rules and regulations to ensure that these cemeteries
are maintained as 'national shrines as a tribute to our gallant dead' and that graves are appropriately
15
marked." Id. at 2480. In the proposed rule, VA, for the first time, defined an applicant as
"refer[ing] to the next of kin or personal representative of the deceased eligible individual who
applies for a Government-furnished headstone or marker." Id. at 2483. VA explained why it was
revising the process for requesting emblems of belief but did not explain why it was proposing a
new, limiting definition of "applicant" for the purpose of requesting burial or memorial headstones
or markers. See id.The corresponding final rule was effective June 1, 2009. In the final rule, "applicant" was
defined as "the decedent's next-of-kin (NOK), a person authorized in writing by the NOK, or a
personal representative authorized in writing by the decedent." 38 C.F.R. § 38.632(b)(1) (2009).
In the comments to the final rule, VA stated that "[G]overnment-furnished headstones and markers
serve a particular, congressionally mandated purpose, namely, to commemorate the gallant dead
in a manner commensurate with the dignity of their sacrifice." Headstone and Marker Application
Process, 74 Fed. Reg. 26,092-01, 26,094 (Jun. 1, 2009) (citing 38 U.S.C. § 2403(c) for the
proposition that "cemeteries under VA control shall be considered 'shrines as a tribute to our
gallant dead'"). But VA did not address its novel limitation on eligible applicants for Government-
furnished headstones or markers.
In 2014, VA "propose[d] to amend its regulations defining who may apply for a headstone
or marker," explaining that the "intended effect of this proposed rule would be to expand the types
of individuals who may request headstones and markers on behalf of decedents." Applicants for
VA Memorialization Benefits, 79 Fed. Reg. 59,176-01 (Oct. 1, 2014). VA acknowledged
"concerns that the existing applicant definition is too restrictive and results in identified veteran
gravesites going unmarked." Id. VA explained:
Because of the regulatory restriction, VA denied the requests for headstones or
markers which has frustrated the efforts of individuals to ensure the unmarked
graves of veterans, particularly those from historic eras, are appropriately marked.
VA shares the goal of these individuals to ensure appropriate recognition of
veterans who served the United States and proposes to revise the definition of
applicant to ease the restrictive aspects of the definition and allow more individuals
to apply for headstones and markers, including memorial headstones and markers.
Id. at 59,176-77.
And, for the first time, VA proposed different eligibility requirements for applicants for
burial headstones and markers than for applicants for memorial headstones and markers. Id. at
59,176-78. As a preliminary matter, VA explained: "The revised definition of applicant recognizes
16
that VA is authorized to provide two types of headstones or markers." Id. at 59,177 (citing
subsections 2306(a) and (b) to show there are two types of headstones and markers).
For burial headstones and markers, it proposed that, for veterans whose service ended on
or after April 6, 2017, eligible applicants would include, in addition to family members, personal
representatives, representatives of congressionally chartered veterans service organizations, and
individuals responsible under applicable laws for the disposition of unclaimed remains or other
interment or memorialization matters. Id. For veterans whose service ended before April 6, 1917,
VA proposed no restrictions on applicant eligibility for burial markers or headstones. Id. at 59,177-
78. Regarding these definitions of "applicant," VA explained, among other things:
Use of the revised definition of personal representative would allow for application
for headstones and markers not only by family members, but also by individuals
who have no familial relationship to the veteran but to whom the responsibility for
final disposition of the remains or other related activities have [sic] fallen. For
example, a close friend or a fellow veteran who served with the decedent may be
called upon to make final arrangements for a veteran with no living family
members. We want to make it possible for this individual to request
memorialization of the veteran.
...
We chose to use April 6, 1917, because it is the date on which the United States
entered World War I. We are aware that many individuals are interested in
researching genealogy, either for themselves or others, or have broad interest in
researching military history, including the burial of veterans. We know that many
individuals have taken up the task of identifying burial places of veterans to obtain
for them a lasting memorial to their service. We applaud the efforts of these
individuals and seek to recognize those efforts by allowing them to make an
application if they identify an unmarked grave of an eligible individual. We believe
that if the grave belongs to a veteran who served during World War I or later, it is
more likely that a living family member (as defined in proposed paragraph (a)(1))
could be found. To ensure that family wishes are respected, we believe that an
unrelated individual who identifies an unmarked grave of an eligible veteran who
served during or after World War I should attempt to identify and contact family
rather than making the application for a burial headstone or marker directly to VA.
Id.On the other hand, VA proposed that for memorial headstones and markers, it would permit
applications from "family members" only, which it characterized as a broader category than "next
of kin." Id. at 59,177 (explaining that for both burial and memorial headstones and markers, "the
phrase 'next of kin,' is too restrictive because it would not allow for extended relatives, such as
fifth cousins and great-nieces or great-great-nephews, to request a headstone or marker for their
17
relatives"). In proposing these revisions, VA stated: "Memorial headstones and markers, under
section 2306(b), are distinct from burial headstones and markers and are authorized to
commemorate an eligible individual whose remains are unavailable for burial." Id. at 59,178. VA
further stated that a memorial site, like a gravesite, provides a physical place for family to gather
and remember their loved one "and of the contribution of a veteran to our country." Id. VA then
explained:
We are proposing to limit the definition of applicant for memorial headstones and
markers to family members . . . so that a memorial headstone or marker retains the
same symbolism and purpose that a burial headstone would have. It is a
commemoration of an individual, not the service of the individual. The nation
honors the service of veterans in many ways; the memorial headstone or marker
allows families to honor their loved one individually.
Id. But at oral argument, the Secretary conceded that it is the veteran, not the family member,
who is entitled to a headstone or marker, OA at 38:01-:15, and that the statutory purpose in
providing headstones and markers includes recognizing a veteran's service to country, OA at
25:50-29:02.
The final rule, effective April 1, 2016, adopted the proposed definitions for applicant, with
the addition of permitting burial headstone and marker applications from state and local individuals
who serve veterans and their families in an official capacity. 38 C.F.R. 38.600(a) (2016). When
addressing the public's supportive comments for the proposed expanded definitions of applicant
for both burial and memorial headstones and markers, VA noted that its "intent is that the expanded
applicant definition will encourage more people to present memorialization claims." Applicants
for VA Memorialization Benefits, 81 Fed. Reg. 10,765-01, 10,766 (Mar. 2, 2016).
VA acknowledged: "While it is true that there was no definition of applicant [for both types
of headstones or markers] in our regulations [before 2009], VA's policy was to accept
memorialization requests from VSOs, landowners, and anyone with knowledge of the decedent."
Id. at 10,767. VA disagreed with the public's comments suggesting the elimination of any
definition of applicant for both types of headstones and markers, explaining: "[O]ur intent, as much
as possible, is to reserve to the family of the decedent decisions regarding memorialization. This
includes the decision not to obtain a government-furnished headstone or marker—or any marker
at all, if that is their decision." Id. at 10,768. And specifically regarding the definitions of the
various applicant classes for burial headstones and markers, VA stated: "We believe our approach
18
strikes an appropriate balance between protecting the interests of a decedent's family and ensuring
the appropriate memorialization of veterans." Id. at 10,769.
VA further acknowledged that commenters had objected to the proposed definition of
applicants for memorial headstones and markers. Id. at 10,768-70. VA characterized memorial
headstones and markers as serving a purpose "similar to that provided by a burial headstone or
marker when remains are available for burial," and stated that, like burial headstones and markers,
a memorial headstone or marker "provide[s] a family with a physical site to gather to mourn and
remember their loved one." Id. at 10,769. VA then explained: "As such, VA has determined that
requests for memorial headstones and markers should be made by family members who are likely
to want to memorialize someone whose life had specific meaning to them." Id.As the above demonstrates, before April 2016 VA's policy was to define applicants for the
two types of headstones and markers the same. But since April 2016, VA's policy has been to
define applicants for the two types of headstones and markers differently, with a much more
restrictive definition for applicants for memorial headstones and markers as compared to
applicants for burial headstones and markers.
The Court will now explain why it will not afford deference to VA's construction of who
is eligible to apply for a memorial headstone or marker under section 2306. See Chevron, 467 U.S.
at 844.
3. § 38.601(c) Is Arbitrary and Capricious
VA has failed to articulate a satisfactory explanation for its 2016 policy of restricting the
applicant class for memorial headstones and markers to just family members, to include "a rational
connection between the facts found and the choice made" and "a reasoned explanation . . . for
disregarding facts and circumstances that underlay or were engendered by the prior policy"; and,
ultimately, VA's policy fails to reconcile conflicting policies and fails to represent a reasonable
accommodation of conflicting policies that Congress would have sanctioned. See Encino
Motorcars, 579 U.S. at 222; Chevron, 467 U.S. at 844-45; Motor Vehicle Mfrs. Ass'n, 463 U.S. at
43.
Regarding the facts and circumstances underlying VA's policies concerning both types of
headstones and markers, VA has acknowledged that "government-furnished headstones and
markers serve a particular, congressionally mandated purpose, namely, to commemorate the
gallant dead in a manner commensurate with the dignity of their sacrifice." Headstone and Marker
19
Application Process, 74 Fed. Reg. 26,092-01, 26,094 (Jun. 1, 2009). And VA characterized
memorial headstones and markers as serving a purpose that is the "same" or "similar" to the
purpose of burial headstones and markers. Specifically, VA explained that both types of
headstones and markers provide a physical site for the family of the decedent to mourn and honor
their loved one.
And regarding VA's prior policies concerning who is eligible to apply for both types of
headstones and markers, VA explained that its policy before 2009 was to accept memorialization
requests from VSOs, landowners, and anyone with knowledge of the decedent. And, in
promulgating its current policies, VA acknowledged that its 2009 policy of restricting eligible
applicants to next-of-kin contravenes VA's own stated goal of ensuring that veterans, particularly
those from historical eras, are recognized for their service to our country. In sum, VA's policy
before 2016 had always been to define the applicants for both burial and memorial headstones and
markers the same, which makes perfect sense given that Congress intended for headstones and
markers to commemorate the gallant dead and their contribution to the Nation, apparently
regardless of whether the decedent's remains were available for burial or not.
But in 2016, VA diverged from its prior policy of defining applicants for both types of
headstones and markers the same, and it failed to provide a satisfactory explanation for doing so.
First, in 2016, VA made the policy decision to significantly broaden the applicant classes
for burial headstones and markers, explaining that newly stated purposes underlie VA's new
policy, including, among others, ensuring that veterans with no family members are provided with
a headstone or marker pursuant to the veteran's own wishes as expressed to personal
representatives, as well as ensuring that non-family individuals (such as those interested in
researching genealogy and military history), who wish to ensure lasting memorials to veterans,
may apply for VA to provide a burial headstone or marker (with the caveat that the wishes of the
family, if any, should be prioritized over the wishes of non-family in the case of veterans who
served during World War I and thereafter).6
But VA failed to make any connection between (a) its new policy of restricting applicants
for memorial headstones and markers to only family members and (b) the above-noted facts and
circumstances raised by VA, albeit raised with respect to veterans whose remains are available for
6
The Court again notes that the subsection concerning the definitions of applicant classes for burial
headstones and markers is not at issue in this case.
20
burial. VA should have provided an explanation, because, for example, the Court is left wondering
why veterans with no family members, whose remains are not available for burial, are not afforded
the benefit of having their personal representatives implement their wishes after death. For another
example, the Court is left wondering why non-family individuals who are interested in genealogy
and military history and in ensuring that veterans with no family members who served before or
since World War I are honored for their contribution to our country are precluded from applying
to VA to provide such a place of commemoration for such a decedent simply because the
decedent's remains are unavailable for burial.
Second, VA failed to provide a rational explanation for its connection between (a) its stated
purpose that, like burial headstones and markers, a memorial headstone or marker provides a
family with a physical site to mourn and remember the decedent, and (b) VA's choice that requests
for memorial headstones and markers should be made only by family members, who are likely to
want to memorialize someone whose life had specific meaning to them. VA's stated purpose (a),
which applies to both types of headstones and markers, does not logically exclude all other
possible purposes (e.g., the additional purposes that VA raised with respect to burial headstones
and markers), given the absence of any explicit statement by VA that all other possible purposes
are excluded for memorial headstones and markers.7 Because VA's choice of policy (b) does not
logically follow the facts and circumstances underlying its change of policy (a), VA failed to
provide rational and sound reasoning for its new policy of restricting applicants for memorial
headstones and markers to only family members to the exclusion of all others. The Court is also
left wondering how this restrictive definition satisfies VA's stated policy of "strik[ing] an
appropriate balance between protecting the interests of a decedent's family and ensuring the
appropriate memorialization of veterans." Applicants for VA Memorialization Benefits, 81 Fed.
Reg. 10,765-01, 10,769 (Mar. 2, 2016).
Third, VA failed to provide rational and sound reasoning for its policy change when it
stated that "[t]he revised definition of applicant recognizes that VA is authorized to provide two
types of headstones or markers." Applicants for VA Memorialization Benefits, 79 Fed. Reg.
59,176-01, 59,177 (Oct. 1, 2014). Without any further explanation by VA, the Court is still left
7
Given that VA did not expressly exclude all other possible purposes, deducing that VA's single stated
purpose (providing family a place to mourn and honor the decedent) necessarily excludes all other possible purposes
is a logical fallacy. Specifically, such a deduction implicates the logical fallacies of "overlooking alternatives" and
"false dilemma" (false dichotomy).
21
wondering why VA has defined "applicants" for memorial headstones and markers so restrictively
compared to its definitions of the applicant classes for burial headstones and markers. Indeed, the
two types of headstones and markers have always been considered different in nature by VA and
by Congress, simply because burial headstones and markers are for veterans whose remains are
available for burial whereas memorial headstones and markers are for veterans whose remains are
not available for burial. So how does the distinctive nature of memorial versus burial headstones
and markers connect to VA's choice to diverge from VA's prior policy of defining applicants for
both types the same? And how does that choice relate to VA's acknowledgement that the two
types of headstones and markers serve the same congressionally mandated purpose?
Why has VA changed its prior long-standing policy of defining applicants for both types
of headstones and markers the same? We cannot know, because VA failed to provide a reasonable
explanation for changing its policy and for adopting a far more restrictive definition of "applicant"
for memorial headstones and markers as compared to burial headstones and markers. See FCC v.
Prometheus Radio Project, 141 S.Ct. 1150, 1158 (2021).
The absurd result of the current policy under § 38.631(c)–for which the Court is precluded
from supplying its own reasoned basis–is that when no surviving family member is available, the
deceased service member and his or her contributions to our country remain unmemorialized,
simply because that service member's remains are not available for burial. In light of the above,
and given Congress's intent to commemorate the gallant dead in a manner commensurate with the
dignity of their sacrifice (apparently without regard to whether or not the remains are available for
burial), the Court cannot find that VA's attempt to reconcile its current policy with conflicting
policies is a reasonable accommodation that Congress would have sanctioned. Cf. Chevron,
467 U.S. at 845.
As a result, the Court holds that § 38.631(c) is arbitrary and capricious, and the Court
affords no deference to VA's policy decision underlying its promulgation of § 38.631(c). See
Encino Motorcars, 579 U.S. at 222; Chevron, 467 U.S. at 844-45; Motor Vehicle Mfrs. Ass'n,
463 U.S. at 43. Accordingly, the Court will invalidate § 38.631(c) (2021).
Because the Board relied on the invalid regulation in reaching its July 2019 decision,
remand is required. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the
appropriate remedy where the Board has incorrectly applied the law). In accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), Mr. Bareford is free
22
to submit additional arguments and evidence on remand, including any additional arguments he
made to this Court; the Board must consider any such evidence or argument submitted. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant
to entail a critical examination of the justification for the [Board's] decision," Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing, 38 C.F.R. § 38.631(c) (2021) is SET ASIDE; the July
1, 2019, Board decision is VACATED; and the matter is REMANDED for further development,
if necessary, and readjudication consistent with this decision.
FALVEY, Judge, concurring in part and dissenting in part: Section 2306 provides that
"[t]he Secretary shall furnish, when requested," burial headstones or markers for the unmarked
graves of eligible individuals or, when the remains are unavailable, "an appropriate memorial
headstone or marker for the purpose of commemorating an eligible individual." 38 U.S.C. §
2306(a), (b). VA has promulgated regulations, 38 C.F.R. §§ 38.630(c) and 38.631(c), establishing,
respectively, who may request a burial headstone or memorial marker. I agree with the Court's
summation of the facts and the parties' arguments in Sections I and II.A and its Chevron step one
analysis in Section II.B.
But I do not join the Court's decision to then invalidate the regulations as arbitrary and
capricious because it disagrees with VA's decision to create different standards for burial headstone
versus memorial marker applicants. Courts apply the law, not make it. When a statute leaves a gap
for an executive agency to fill, we must defer to a reasonable agency action as long as the agency
has considered the relevant issues and provided a reasoned explanation. We must not substitute
our own policy judgment for the agency's. Here, the Secretary's explanation shows that he made a
reasonable choice after weighing the relevant considerations. Yet the Court rejects the Secretary's
reasonable distinction between the applicant classes for burial headstones and memorial markers.
Thus, I respectfully dissent from Sections II.C and III. of the Court's opinion.
I.
23
"Statutory interpretation begins with the words of the statute." Mulder v. McDonald, 805
F.3d 1342, 1345 (Fed. Cir. 2015) (citing Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450
(2002)). "When, as here, the Court is reviewing 'an agency's construction of the statute which it
administers,' a court must first ask 'whether Congress has directly spoken to the precise question
at issue.'" Cox v. McDonald, 28 Vet.App. 318, 323 (2016) (quoting Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842, (1984)). If we determine that Congress has
spoken directly to the issue, we must adhere to the unambiguous meaning. Cox, 28 Vet.App. at
323. But if the statute is silent or ambiguous on the issue, the question then becomes whether the
agency's interpretation is based on a permissible construction of the statute. Id. This is known as
Chevron steps one (determining ambiguity) and two (determining permissible statutory
construction). See Buffington v. Wilkie, 31 Vet.App. 293, 300-02 (2019), aff'd sub. nom. Buffington
v. McDonough, 7 F.4th 1361 (Fed. Cir. 2021).
Here, the operative statutory sentence provides, "the Secretary shall furnish, when
requested, an appropriate headstone or marker." 38 U.S.C. § 2306(a) (emphasis added). The
subject of the sentence is "Secretary." The main verb or action is "furnish." But the adverbial
phrase "when requested" lacks an explicit subject and verb. It is implied that the Secretary must
furnish the headstone or marker at the time requested. But it is unclear who is making the request
and the statute thus leaves ambiguity on this point.
This conclusion is bolstered by section 2306(c), which provides that "[a] headstone or
marker furnished under subsection (a), (b), or (d) of this section may be of any material . . .
requested by the person entitled to request such headstone or marker." 38 U.S.C. § 2306(c). Under
this provision, Congress specified that some people are "entitled" to request a headstone or marker
and, necessarily, some people are not entitled to make a request. See RadLAX Gateway Hotel, LLC
v. Amalgamated Bank, 566 U.S. 639, 645 (2012) ("[I]t is a commonplace of statutory construction
that the specific governs the general."); Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) ("The
expression of one thing implies the exclusion of others.").
II.
Because the statute is silent about who may request a headstone or marker, the Secretary
may issue a regulation filling that gap. VA, as "'an agency that has been granted authority to
promulgate regulations necessary to the administration of a program it oversees[,] may fill in gaps
24
in the statutory scheme left by Congress,'" and a regulation that does so is valid "'as long as the
agency's action is reasonable and consistent in light of the statute and congressional intent'." Sears
v. Principi, 349 F.3d 1326, 1329 (Fed. Cir. 2003) (first quoting Contreras v. United States, 215
F.3d 1267, 1274 (Fed. Cir. 2000) and then quoting Disabled Am. Veterans v. Gober, 234 F.3d 682,
691 (Fed. Cir. 2000)); see also Cox, 28 Vet.App. at 323 (citing Chevron, 467 U.S. at 842).
The question at hand is whether VA's gap-filling rules were "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law" so that the Court should hold them invalid
under the Administrative Procedure Act. 5 U.S.C. § 706(2)(A). To pass "arbitrary and capricious"
review, an agency decision must be "reasonable and reasonably explained." FCC v. Prometheus
Radio Project, 141 S.Ct. 1150, 1158 (2021).
In a recent unanimous decision, the Supreme Court stated that "arbitrary and capricious"
review "is deferential, and a court may not substitute its own policy judgment for that of the
agency." Id. A reviewing court instead "simply ensures that the agency has acted within a zone of
reasonableness and, in particular, has reasonably considered the relevant issues and reasonably
explained the decision." Id. The Supreme Court has also instructed that arbitrary and capricious
review is a "'narrow'" standard and that courts should "'uphold [decisions] of less than ideal clarity
if the agency's path may be reasonably discerned'." FCC v. Fox Television Stations, Inc., 556 U.S.
502, 513 (2009) (first quoting Motor Vehicle Mfrs. Assoc. of United States, Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983); then quoting Bowman Transp., Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 289 (1974)). Moreover, a court will not overturn an agency
decision unless the agency
"has relied on factors which Congress had not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise."
Nat'l Assoc. of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007) (quoting Motor
Vehicle Mfrs., 463 U.S. at 43).
"Arbitrary and capricious" review gives significant deference to agency discretion. Much
as when we apply the "rational basis" standard when reviewing constitutional questions, we need
not agree with the course the agency has chosen. Indeed, we may have preferred any number of
alternative paths. Even so, the relevant inquiry is simple: Was the agency's decision reasonable
25
and did the agency provide an adequate explanation that considered the relevant issues?
Prometheus Radio, 141 S.Ct. at 1158.
III.
Here, the answer to both parts of the inquiry is yes. VA filled the statutory gap of who may
request a burial headstone or memorial marker by defining "applicant" for each type of marker. 38
C.F.R. §§ 38.630(c), 38.631(c). The potential applicant pool for burial headstones is larger,
including family members as well as several classes of persons unrelated to the deceased veteran.
§ 38.360(c). For memorial markers, on the other hand, only family members may apply. §
38.361(c). Although we may desire more people to be able to request memorial markers, the
differentiation between the two applicant pools is reasonable.
Congress authorized VA to define applicant eligibility, and VA chose to prioritize the
wishes of family members. See Mayo Found. for Med. Educ. and Rsch. v. United States, 562 U.S.
44, 59 (2011) ("Regulation, like legislation, often requires drawing lines."). When promulgating
the regulations at issue, VA stated, "[O]ur intent, as much as possible, is to reserve to the family
of the decedent decisions regarding memorialization." 81 Fed. Reg. 10,678 (March 2, 2016).
Although VA restricted memorial marker applications to relatives alone, it allowed unrelated
individuals to make burial headstone requests for veterans whose service ended before April 6,
1917,8 and whose families' wishes would thus generally be harder to determine. 81 Fed. Reg.
10,768. ("[W]e chose to include a date after which we felt it will be more likely that living family
members could be located and could provide input into the marking of a grave."). VA explained
that it chose to differentiate the family-relation requirement for memorial markers and burial
headstones because memorial markers are intended not to identify a burial site but to provide
family members with a physical site to "mourn and remember their loved one" when remains are
unavailable. Id. at 10,768-69. It reasoned that "requests for memorial . . . markers should be made
by family members who are likely to want to memorialize someone whose life had specific
meaning to them." Id. at 10,769. Memorial markers have a distinct, family-centric purpose not
necessarily shared by burial headstones, which are placed at the location of the decedent's remains
8
April 6, 1917, was the date the United States declared war on Germany and entered World War I. U.S.
Entry into World War I, Office of the Historian, Foreign Service Institute, https://history.state.gov/milestones/1914-
1920/wwi (last visited December 7, 2021).
26
rather than the family's chosen place of mourning. See id. Thus, it makes sense for relatives' wishes
to be especially prioritized regarding memorial markers in a way they are not for burial headstones.
VA responded extensively to public comments about §§ 38.360(c) and 38.361(c), including
Mr. Bareford's comments. See id. at 10,765-70. It addressed, among others, comments suggesting
broader categories of applicants, that the previous applicant standard should be reinstated, that the
applicant definitions should be eliminated, that date restrictions should be eliminated, and that
non-relatives should be allowed to apply for memorial markers. Id. VA's responses repeatedly
emphasized the prioritization of family members' wishes in the remembrance of their loved ones,
especially regarding memorial markers, and explained why VA differentiated between burial
headstone applicants and memorial marker applicants. See id. at 10,765-70.
Given VA's comments, it reasonably defined who may be an applicant for burial
headstones versus memorial markers and adequately explained its reasoning for the differing
eligibility. See Prometheus Radio, 141 S.Ct. at 1158. Thus, VA's decision warrants deference
under the "arbitrary and capricious" standard and the Court should not invalidate the Secretary's
regulations. See id.
We may believe that VA should have prioritized considerations other than family members'
wishes when it promulgated these regulations. We may believe that, although VA was correct to
prioritize family members' wishes, it should have done so in a different way. That, however, does
not change the level of deference we owe to VA.
Yet, rather than defer to the Secretary's reasonable regulations, the Court mandates that
requests for burial headstones and memorial markers be treated identically because they serve
similar purposes. By emphasizing that "it is the veteran, not the family member, who is entitled to
a headstone or marker," ante at 19, the Court dismisses VA's explanation that it sought to uniquely
prioritize family members' wishes for memorial markers. But the issue here is not who is entitled
to a headstone or marker. The issue is who may request a headstone or marker.
The Court implies that, because VA listed multiple policy considerations that informed its
definition of the applicant class for burial headstones, the agency could not prioritize family
members' wishes in defining the memorial marker applicant class unless it explicitly excluded all
other possible considerations. See ante at 20-21. I fail to see how this follows. VA reasonably
explained why it regarded family members' wishes as the primary consideration for memorial
markers in a way it did not for burial headstones. What's more, our task is not to mandate complete
27
consistency in VA's policy choices or ensure that it specifically account for every plausible
consideration. We need only ensure that the agency make a reasonable choice after considering
the relevant issues. And it has done so here.
Moreover, by striking down the Secretary's regulations as arbitrary and capricious, the
Court effectively requires that VA provide a burial headstone or memorial marker to anyone,
without limitation, and that VA must do so no matter how many individuals or entities request a
headstone or marker.9 This is an absurd result not contemplated by the plain language of the statute.
IV.
The Court ably details the tragic deaths of veteran Roy H. Anderson and others and Mr.
Bareford's noble and persistent efforts to memorialize those deaths. Despite these compelling facts,
VA's regulations prescribing who may apply for burial headstones and memorial markers are not
arbitrary and capricious, and the Court should defer to the Secretary's reasonable and reasonably
explained regulations. Thus, I respectfully dissent.
9
There are other statutory considerations and limitations concerning headstones or markers that are not at
issue, such as where the individual is buried, who is an eligible deceased individual, and what constitutes unavailable
remains of a deceased individual. See § 2306(a), (b).
28