Veteranclaims’s Blog

March 26, 2022

VETERAN WARRIORS, INC., v. SECRETARY OF VETERANS AFFAIRS, No. 2021-1378(Decided: March 25, 2022); Caregivers and Veterans Omnibus Health Services Act, Pub. L. No. 111-163, 124 Stat. 1130 (Caregivers Act); VA MISSION Act; 38 U.S.C. § 1720G(a)(1)(A); “in need of personal care services.” See 38 C.F.R. § 71.15; § 1720G(d)(4)(A) through (D)—delineate the universe of services that qualify as “personal care services; Congress expressly defined “support services” to include both in-person and remote services but remained silent with respect to “personal care services.”; Primary family caregivers are entitled to a monthly stipend. 38 U.S.C. § 1720G(a)(3)(A)(ii)(V); “serious injury”; 38 C.F.R. § 71.15; 38 U.S.C. § 1720G(a)(2)(C)(i)–(iv); inability to perform one or more activities of daily living; Need for supervision, protection, or instruction means a functional impairment that directly impacts on a daily basis;

Filed under: Uncategorized — veteranclaims @ 1:08 am

United States Court of Appeals for the Federal Circuit


VETERAN WARRIORS, INC., ANDREW D. SHEETS,
KRISTIE SHEETS,
Petitioners
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent


2021-1378


Petition for review pursuant to 38 U.S.C. Section 502.


Decided: March 25, 2022


TIMOTHY Q. LI, Sidley Austin LLP, New York, NY, argued
for petitioners. Also represented by MICHAEL R.
FRANZINGER, Washington, DC; BARTON FRANK STICHMAN,
I, National Veterans Legal Services Program, Washington,
DC.
SOSUN BAE, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington,
DC, argued for respondent. Also represented by BRIAN M.
BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY.


Case: 21-1378 Document: 56 Page: 1 Filed: 03/25/2022
VETERAN WARRIORS, INC. v.
SECRETARY OF VETERANS AFFAIRS
2
Before MOORE, Chief Judge, REYNA and CHEN, Circuit
Judges.
MOORE, Chief Judge.
Veteran Warriors, Inc., Andrew D. Sheets, and Kristie
Sheets (Petitioners) petition for review of a final rule promulgated
by the Department of Veterans Affairs.1 They
claim seven parts of that rule are invalid under the two step
framework set forth in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). The
government challenges Petitioners’ standing. For the following
reasons, we dismiss in part, grant in part, and deny
in part the petition.
BACKGROUND
In 2010, Congress enacted the Caregivers and Veterans
Omnibus Health Services Act, Pub. L. No. 111-163, 124
Stat. 1130 (Caregivers Act) (codified in scattered sections
of title 38). That Act required the VA to establish two programs,
both of which were designed to help individuals who
provide eligible veterans with personal care services. One
program provided assistance to family caregivers—individuals
who provide veterans with personal care services and
who are related to or live with those veterans. 38 U.S.C.
§ 1720G(a) (detailing the family caregivers program). The
other program provided assistance to general caregivers—
other individuals who provide veterans with personal care
services. Id. § 1720G(b) (detailing the general caregivers
program). To implement these programs, the VA promulgated
a series of regulations. 38 C.F.R. pt. 71 (2015).
In 2018, Congress amended the Caregivers Act. See
John S. McCain III, Daniel K. Akaka, and Samuel R.
1 The parties do not identify any relevant distinction
between the VA and the Secretary of Veterans Affairs.
Therefore, we refer to them collectively as the VA.
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VETERAN WARRIORS, INC. v.
SECRETARY OF VETERANS AFFAIRS
3
Johnson VA Maintaining Internal Systems and Strengthening
Integrated Outside Networks Act, Pub. L. No. 115-
182, 132 Stat. 1393 (VA MISSION Act). The VA MISSION
Act expanded the class of veterans who qualify as eligible
under the family caregivers program. For example, the
program now applies to all veterans regardless of their service
dates, and there are new avenues for a veteran to qualify
as eligible for benefits. Id. § 161, 132 Stat. at 1438–40.
To implement the VA MISSION Act and further improve
the family caregivers program, the VA overhauled its
regulations. Program of Comprehensive Assistance for
Family Caregivers Improvements and Amendments Under
the VA MISSION Act of 2018, 85 Fed. Reg. 46,226 (July 31,
2020) (Final Rule) (to be codified at 38 C.F.R. pt. 71); see
also Program of Comprehensive Assistance for Family
Caregivers Improvements and Amendments Under the VA
MISSION Act of 2018, 85 Fed. Reg. 13,356 (proposed
Mar. 6, 2020) (Proposed Rule) (to be codified at 38 C.F.R.
pt. 71). In general, the VA attempted to clarify, streamline,
and regularize its implementation of the Caregivers Act.
Veteran Warriors (a veterans advocacy organization),
Andrew Sheets (an eligible veteran), and Kristie Sheets
(Mr. Sheets’ caregiver) petition for review of seven parts of
the Final Rule. They challenge six definitions in 38 C.F.R.
§ 71.15 and the residency requirement imposed in 38
C.F.R. § 71.10(b). The government contests Petitioners’
standing.
DISCUSSION
I. Standing
Veteran Warriors claims associational standing to
challenge the Final Rule. To succeed in that claim, Veteran
Warriors must prove (1) “its members would otherwise
have standing to sue in their own right,” (2) “the interests
it seeks to protect are germane to [its] purpose,” and (3)
“neither the claim asserted nor the relief requested
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VETERAN WARRIORS, INC. v.
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4
requires the participation of individual members in the
lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432
U.S. 333, 343 (1977). And it must do so for each challenged
portion of the Final Rule. See Nat’l Org. of Veterans’ Advocs.,
Inc. v. Sec’y of Veterans Affs., 981 F.3d 1360, 1370
(Fed. Cir. 2020) (en banc) (noting that standing must be
shown for “the particular challenged rule”); Mil.-Veterans
Advoc. v. Sec’y of Veterans Affs., 7 F.4th 1110, 1122–32
(Fed. Cir. 2021) (assessing standing on a challenge-by-challenge
basis).
In large part, Veteran Warriors has carried its burden
to prove standing. It provided a declaration from Donald
Lewis, who has standing to challenge three aspects of the
Final Rule. Pet’rs’ Reply Br. Ex. 1; see also Government’s
Suppl. Br. Ex. A ¶ 3 (noting that Mr. Lewis was denied benefits
based on the VA’s definitions for “in need of personal
care services,” “inability to perform an activity of daily living,”
and “need for supervision, protection, or instruction”).
It has also proven that Mr. and Ms. Sheets have standing
to challenge a fourth aspect of the Final Rule—tying benefit
amounts to the GS scale.2 Pet’rs’ Reply Br. Ex. 6; see
Government’s Suppl. Br. Ex. A ¶ 8 (noting that Ms. Sheets’
monthly stipend was reduced when the VA adopted the GS
scale). Likewise, Veteran Warriors has shown that Timothy
Chilson can challenge the Final Rule’s definition of “serious
injury.” Mr. Chilson’s 60-percent disability rating
prevents him from having a “serious injury” under the Final
Rule, despite his need for personal care services. Pet’rs’
Reply Br. Ex. 8 ¶¶ 4, 7. Veteran Warriors has also identified
one of its members who has standing to challenge the
residency requirement, John Reay. Id. Ex. 5; see also Government’s
Suppl. Br. Ex. A ¶ 7 (noting VA denied Mr. Reay
benefits based on that requirement). In addition, Veteran
2 Accordingly, the Sheets have standing to proceed
as individual petitioners.
Case: 21-1378 Document: 56 Page: 4 Filed: 03/25/2022
VETERAN WARRIORS, INC. v.
SECRETARY OF VETERANS AFFAIRS
5
Warriors has proven that Jason Wright has standing to
challenge part of the Final Rule’s definition of “unable to
self-sustain in the community,” specifically the portion that
depends on a veteran being in need of continuous supervision,
protection, or instruction. Pet’rs’ Reply Br. Ex. 7
¶¶ 6–7; see also Government’s Suppl. Br. at 8. Each of
these challenges is germane to Veteran Warriors’ purposes
as a veterans advocacy organization, and no challenge requires
the involvement of an individual member. Thus,
Veteran Warriors has proven all three prongs of associational
standing for these challenges.
But Veteran Warriors has not carried its burden to
prove standing for part of its challenge to the Final Rule’s
definition of “unable to self-sustain in the community.” No
declarant has standing to challenge the “three or more activities
of daily living” pathway for satisfying that definition.
Mr. Wright’s declaration is limited to his need for
supervision, protection, or instruction. Pet’rs’ Reply Br.
Ex. 7 ¶ 6–7. Monet Gay has died, preventing her declaration
from supporting standing. Government’s Suppl. Br. at
Ex. A ¶ 4. Todd Servello, Pet’rs’ Reply Br. Ex. 3 ¶ 7, and
Kaitlyn Laycoax, id. Ex. 4 ¶ 7, claim a need for assistance
with all their activities of daily living, undermining any
claim of injury in fact. If those allegations are true,
Mr. Servello and Ms. Laycoax would be entitled to full benefits
regardless of the VA’s “three or more” language. Without
an individual member who would have standing to sue
in his own right, Veteran Warriors cannot establish associational
standing for this challenge. Thus, we dismiss Petitioners’
challenge to the “three or more activities of daily
living” requirement for a veteran to qualify as unable to
self-sustain in the community.3
3 Petitioners sought leave to file certain supplemental
declarations. Because we need not rely on those
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II. Merits
Congress delegated the VA authority to “establish a
program of comprehensive assistance for family caregivers
of eligible veterans.” See 38 U.S.C. § 1720G(a)(1)(A). We
must, therefore, defer to VA regulations interpreting the
statutory framework. See United States v. Mead Corp., 533
U.S. 218, 229 (2001) (deferring when “Congress would expect
the agency to be able to speak with the force of law”).
And we do so under the two-step framework set forth in
Chevron, 467 U.S. at 842–43. Step one asks “whether Congress
has directly spoken to the precise question at issue.”
Id. at 842. “If the intent of Congress is clear, that is the
end of the matter,” and we “must give effect to the unambiguously
expressed intent of Congress.” Id. at 842–43. If,
however, “the statute is silent or ambiguous with respect
to the specific issue,” we proceed to step two of the Chevron
framework, at which we determine “whether the agency’s
answer is based on a permissible construction of the statute.”
Id. at 843.
Petitioners challenge seven parts of the Final Rule.
For each challenge, they claim the regulatory text is both
inconsistent with and an unreasonable interpretation of
the statutory framework. The government, for its part, defends
the VA’s regulations as reasonable interpretations of
statutory silence or ambiguity. We take each challenge in
turn.4
declarations and because they do not speak to the “three or
more” requirement, we deny Petitioners’ motion as moot.
4 At various points, Petitioners argue any silence or
ambiguity in the statute must be resolved in the veteran’s
favor. See Brown v. Gardner, 513 U.S. 115, 118 (1994) (reciting
“the rule that interpretive doubt is to be resolved in
the veteran’s favor”). But they fail to develop those
Case: 21-1378 Document: 56 Page: 6 Filed: 03/25/2022
VETERAN WARRIORS, INC. v.
SECRETARY OF VETERANS AFFAIRS
7
A. In Need of Personal Care Services
Petitioners’ first challenge is aimed at the VA’s definition
of “in need of personal care services.” See 38 C.F.R.
§ 71.15. The phrase “in need of personal care services” appears
only once in the statute:
(2) For purposes of this subsection, an eligible veteran
is any individual who . . .
(C) is in need of personal care services because
of—
(i) an inability to perform one or
more activities of daily living;
(ii) a need for supervision or protection
based on symptoms or residuals
of neurological or other
impairment or injury;
(iii) a need for regular or extensive
instruction or supervision without
which the ability of the veteran to
function in daily life would be seriously
impaired; or
(iv) such other matters as the Secretary
considers appropriate.
38 U.S.C. § 1720G(a) (emphasis added). A veteran who is
“in need of personal care services” may qualify as an
arguments, just asserting the rule without explanation.
See, e.g., Pet’rs’ Br. 43, 46, 48, 50, 53, 54, 57. Accordingly,
we need not consider whether or how the pro-veteran canon
applies in this case. See SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (when a
party does not develop an argument, we treat that argument
as waived).
Case: 21-1378 Document: 56 Page: 7 Filed: 03/25/2022
VETERAN WARRIORS, INC. v.
SECRETARY OF VETERANS AFFAIRS
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“eligible veteran,” thereby entitling his family caregivers to
benefits. Id.
In the Proposed Rule, the VA read this language and
the broader statutory context as creating a gap. 85 Fed.
Reg. at 13,359. It concluded that Congress had not spoken
to the meaning of “in need of personal care services,” leaving
that question to the VA. Id. The VA then filled that
gap with a regulatory definition. See 38 C.F.R. § 71.15.
Under § 71.15, a veteran is “in need of personal care services”
when he “requires in-person personal care services
from another person, and without such personal care services,
alternative in-person caregiving arrangements (including
respite care or assistance of an alternative
caregiver) would be required to support the eligible veteran’s
safety.”
Petitioners challenge the in-person requirement. They
claim the VA’s interpretation is inconsistent with the statutory
text, which does not establish an in-person requirement.
They also argue the VA’s interpretation is
unreasonable, preventing Chevron deference at step two.
We do not agree.5
5 For this challenge and others, Petitioners suggest
the questions at issue are of “deep “economic and political”
significance,” and thus, Congress would not have delegated
to the VA authority to resolve them. Pet’rs’ Reply Br. 12
(quoting King v. Burwell, 576 U.S. 473, 486 (2015)). But
this is not one of the “extraordinary cases” contemplated in
King, 576 U.S. at 485–86, to which the Chevron framework
does not apply. The questions presented here do not approach
the significance of the question presented in King—
which involved billions of dollars and affected millions of
people. See J.A. 396 (noting around 15,600 caregivers have
been awarded benefits). Accordingly, we apply Chevron
throughout.
Case: 21-1378 Document: 56 Page: 8 Filed: 03/25/2022
VETERAN WARRIORS, INC. v.
SECRETARY OF VETERANS AFFAIRS
9

  1. Step One
    Congress has not spoken to the precise interpretive
    question at issue in this challenge—whether a veteran
    must require in-person care to be “in need of personal care
    services.” The statutory text does not address where personal
    care services must be provided; the statutory structure
    provides no additional clarity; and the legislative
    history does not evidence an unambiguous congressional
    intent for “in need of personal care services” to include remote
    care. Put simply, there is a gap in the statute.
    We start with the meaning of “in need of personal care
    services.” Congress defined part of that phrase, “personal
    care services,” to mean:
    [S]ervices that provide the veteran the following:
    (A) Assistance with one or more activities
    of daily living.
    (B) Supervision or protection based on
    symptoms or residuals of neurological or
    other impairment or injury.
    (C) Regular or extensive instruction or supervision
    without which the ability of the
    veteran to function in daily life would be seriously
    impaired.
    (D) Any other non-institutional extended
    care (as such term is used in section
    1701(6)(E) of this title).
    38 U.S.C. § 1720G(d)(4). This definition describes what
    services qualify as “personal care services”—for example,
    assistance with an activity of daily living. But it does not
    expressly describe where those services must be provided.
    That is, the definition does not directly speak to the interpretive
    question at issue here.
    Case: 21-1378 Document: 56 Page: 9 Filed: 03/25/2022
    VETERAN WARRIORS, INC. v.
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    Nor can we infer an answer to the interpretive question
    at issue from that definition. Four subsections—
    § 1720G(d)(4)(A) through (D)—delineate the universe of
    services that qualify as “personal care services.
    ” If all of
    those subsections are unambiguously limited to in-person
    care, the statute would compel the VA’s interpretation.6 At
    least subsection (C), however, could be read broadly to include
    remote services. Id. § 1720G(d)(4)(C). Instruction
    and supervision—even if regular, extensive, and necessary
    for a veteran to function in daily life—conceivably could be
    administered remotely. A family caregiver could, for example,
    instruct a veteran to take life-saving medication over
    the phone multiple times a day. Under a broad interpretation
    of subsection (C), then, the veteran could be eligible
    based on a need for remote personal care services.
    That said, the potential breadth of subsection (C)—or
    any other subsection that could be read to include remote
    services—does not compel Petitioners’ interpretation. The
    vast majority of services that fit neatly within the statutory
    definition are administered in person. Assistance with activities
    of daily living—like bathing, toileting, and
    6 The VA’s interpretation would not be compelled if
    only a single subsection (or something less than all subsections)
    were limited to in-person care because the subsections
    are listed disjunctively, rather than conjunctively. To
    be sure, § 1720G(d)(4) does not use conjunctive (“and”) or
    disjunctive (“or”) language when listing the four statutory
    categories. Context, however, shows the disjunctive applies.
    The definition of “in need of personal care services”
    uses the disjunctive when listing subsections very similar
    to those listed in the definition of “personal care services.”
    Compare 38 U.S.C. § 1720G(a)(2)(C) with id. § 1720G(d)(4).
    It would be inconsistent for Congress to use the disjunctive
    in § 1720G(a)(2)(C) while intending § 1720G(d)(4) to be
    conjunctive.
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    dressing—occurs mostly (if not exclusively) in person. See
    38 U.S.C. § 1720G(d)(4)(A). See generally 38 C.F.R. § 71.15
    (listing activities of daily living, including bathing, toileting,
    and dressing). Protection and supervision, while perhaps
    possible to provide remotely, are largely in-person
    forms of assistance. It would be difficult to protect or supervise
    a veteran over the telephone or a videocall. The
    nature of the services suggests that “personal care services”
    are meant to be in-person care. While subsections
    (A) through (D) are not unambiguously limited to in-person
    care, they do not unambiguously include remote care either.
    Ultimately, those categories do not provide an answer
    to the interpretative question at issue here.
    Apart from the statutory definition, the ordinary meaning
    of the phrase “personal care services” does not clarify
    Congress’ intent regarding where those services must be
    provided. No party has identified a relevant technical
    meaning for “personal care services.” See Van Buren v.
    United States, 141 S. Ct. 1648, 1657 (2021) (“[C]ourts take
    note of terms that carry ‘technical meanings.’”). And the
    word personal does not limit “personal care services” to
    those services administered in person. The VA identified
    two common meanings for that word: “done, made, or performed
    in person” and “[o]f or relating to a particular person.”
    See Proposed Rule, 85 Fed. Reg. at 13,360 (quoting
    The American Heritage Dictionary of the English Language
    1311 (4th ed. 2000)). In this context, however, the
    latter definition fits more naturally. The statute discusses
    various types of “services,” of which “personal care services”
    is one example. See, e.g., 38 U.S.C.
    § 1720G(a)(3)(A)(ii)(II) (“mental health services”); id.
    § 1720G(a)(3)(A)(ii)(VI)(aa) (“financial planning services”);
    id. § 1720G(a)(3)(A)(ii)(VI)(bb) (“legal services”); id.
    § 1720G(b) (“support services”). For the other uses of “services,”
    the modifier describes what the services are, not
    where they are provided. Applied to “personal care services,”
    that means the second definition—of or relating to
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    a particular person—controls. Of the two definitions, it is
    the only one that speaks to what the services are; “personal
    care services” are services that relate to a particular veteran.
    In short, the ordinary meaning of “personal care services”
    does not speak to where those services must be
    administered.
    In addition to defining “personal care services,” the
    statute describes which veterans qualify as “in need of personal
    care services.” See 38 U.S.C. § 1720G(a)(2)(C). It
    does not, however, address the location of personal care
    services in that description. In large part, § 1720G(a)(2)(C)
    parrots the language contained in the definition of “personal
    care services.” When it does use different language,
    the changes are minor. For example, compare the relevant
    provisions’ language regarding activities of daily living:
    [§ 1720G(d)(4):] “[P]ersonal care services” . . .
    means services that provide . . . assistance with one
    or more activities of daily living.
    [§ 1720G(a)(2)(C):] [A]n eligible veteran is any individual
    who . . . is in need of personal care services
    because of . . . an inability to perform one or more
    activities of daily living.
    (emphases added). The differences here show only what
    “in need of” means: in this context, having “an inability to
    perform.” That does not speak to where personal care services
    are administered. And the other statutory differences
    track this pattern, explaining what “in need of” means for
    each aspect of “personal care services.” Thus, the statutory
    description of “in need of personal care services” is also silent
    regarding where personal care services must be administered.
    Accordingly, no part of “in need of personal care services”
    addresses whether personal care services must be
    provided in person. The statute defines “personal care services”
    and describes which veterans are “in need of
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    personal care services,” but it says nothing about where
    those services must be provided. Still, we must consider
    the statutory context before concluding there is a statutory
    gap. See Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 320
    (2014) (noting words of a statute must be read in context);
    cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (“[A] court
    cannot wave the ambiguity flag just because it found the
    regulation impenetrable on first read.”). The parties identify
    several provisions as relevant to where “personal care
    services” are administered, but no provision resolves the
    statutory silence.
    First, the statutory definition of “family member” does
    not speak to where personal care services are administered.
    Family caregiver benefits are available only to a veteran’s
    “family member[s].” And subsection (d)(3) defines
    who qualifies as a family member:
    The term “family member”, with respect to an eligible
    veteran under subsection (a), means an individual
    who—
    (A) is a member of the family of the veteran,
    including—
    (i) a parent;
    (ii) a spouse;
    (iii) a child;
    (iv) a step-family member; and
    (v) an extended family member; or
    (B) lives with the veteran but is not a member
    of the family of the veteran.
    Under this definition, a member of the veteran’s family
    need not live with him to qualify for benefits. That does
    not, however, necessarily bring remote services within the
    scope of the phrase “personal care services.” There is no
    statutory link between where a caregiver lives and where
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    personal care services are administered. So the former provides
    no insight into the latter.
    Second, the general caregivers program allows for remote
    support services, but it says nothing about where personal
    care services are administered. The general
    caregivers program provides benefits, called support services,
    to veterans’ caregivers. Those benefits include:
    (i) Services regarding the administering of personal
    care services, which, subject to subparagraph
    (B), shall include—
    (I) educational sessions made available
    both in person and on an Internet website;
    (II) use of telehealth and other available
    technologies; and
    (III) teaching techniques, strategies, and
    skills for caring for a disabled veteran; . . . .
    38 U.S.C. § 1720G(b)(3)(A)(i) (emphases added). While
    Congress expressly permitted caregivers to receive remote
    training and education, that says nothing about whether
    veterans can receive remote care from these caregivers.
    There is no statutory link between the location of support
    training services for the caregivers and the location of personal
    care services for the veterans. Thus, this provision
    does not fill the statutory silence regarding where personal
    care services are administered.
    Nor does this provision turn that silence into a proscription,
    foreclosing the VA’s interpretation because Congress
    called out “in-person” services in one provision while
    remaining silent in another. Congress expressly defined
    “support services” to include both in-person and remote
    services but remained silent with respect to “personal care
    services.”
    It did so while delegating to the VA authority to
    “establish a program of comprehensive assistance for family
    caregivers of eligible veterans.” 38 U.S.C.
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    § 1720G(a)(1)(A). This suggests Congress delegated the interpretive
    question here—where personal care services are
    administered—to the VA. “[A] congressional mandate in
    one section and silence in another often suggests not a prohibition
    but simply a decision not to mandate any solution
    in the second context, i.e., to leave the question to agency
    discretion.” Catawba Cnty., N.C. v. E.P.A., 571 F.3d 20, 36
    (D.C. Cir. 2009).
    Third, the statutory stipend provisions do not address
    where “personal care services” are administered. Primary
    family caregivers are entitled to a monthly stipend. 38
    U.S.C. § 1720G(a)(3)(A)(ii)(V)
    . While Congress delegated
    to the VA authority to set the stipend amount, see id.
    § 1720G(a)(3)(C)(i), it provided certain guidelines. One
    guideline uses “home health care” wages to set a minimum
    compensation level:
    The Secretary shall ensure, to the extent practicable,
    . . . that the amount of the monthly personal
    caregiver stipend . . . is not less than the monthly
    amount a commercial home health care entity
    would pay an individual in the geographic area of
    the eligible veteran to provide equivalent personal
    care services to the eligible veteran.
    Id. § 1720G(a)(3)(C)(ii) (emphasis added). But that is several
    steps removed from the question here: where personal
    care services are administered. It is less than clear that
    home health aides provide only in-person services. And
    even if that were true, nothing in the statute requires a
    family caregiver to provide the same services that a home
    health aide provides. Without these links, the stipend provision
    does not speak to where personal care services are
    administered.
    Fourth, the availability of “in-home” respite care also
    does not fill the statutory gap. In addition to a stipend,
    primary family caregivers are entitled to:
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    [R]espite care of not less than 30 days annually, including
    24-hour per day care of the veteran commensurate
    with the care provided by the family
    caregiver to permit extended respite.

Respite care provided under subparagraph
(A)(ii)(III) shall be medically and age-appropriate
and include in-home care.
38 U.S.C. § 1720G(a)(3)(A)(ii)(III), 1720G(a)(3)(B) (emphasis
added). The “in-home” language in this provision suggests
that some respite care may be intended to replace inperson
personal care services. But this does not mean personal
care services must be administered in person. Respite
care need only “include in-home” care; there is no
suggestion that respite care must be limited to such care.
A family caregiver may be providing only remote services,
in which case in-person respite care may not be “commensurate
with the care provided by [that] caregiver” or “medically
. . . appropriate.” See id. § 1720G(a)(3)(A)(ii)(III),
1720G(a)(3)(B). In such circumstances, remote respite care
might be available. It is also possible for in-home respite
care to be provided when the family caregiver only provided
remote care, e.g., replacing phone call reminders with inperson
reminders. At best, this subsection contemplates
some in-person personal care services that will be replaced
with in-person respite care. It does not, however, limit personal
care services to in-person care.
Fifth, the VA’s monitoring obligations do not limit “personal
care services” to in-person care. As part of the family
caregivers program, the VA must “monitor the well-being
of each eligible veteran receiving personal care services”
and “document each finding the Secretary considers pertinent
to the appropriate delivery of personal care services
to an eligible veteran under the program.” 38 U.S.C.
§ 1720G(a)(9)(A)–(B). And it must “establish procedures”
to satisfy those obligations that “may include . . . [v]isiting
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an eligible veteran in the eligible veteran’s home to review
directly the quality of personal care services provided to the
eligible veteran.” Id. § 1720G(a)(9)(C)(i) (emphasis added).
This language, at best, contemplates that some personal
care services may be provided in person. Indeed, the VA
could visit a veteran’s home to observe how remote services
are administered. The monitoring obligations do not answer
the interpretive question here.
Separate from the text and structure of the statute, Petitioners
claim § 1720G’s history and purpose foreclose the
VA’s interpretation. They point to the VA MISSION Act as
evidencing Congress’ intent to expand benefits. Certainly,
that Act expanded the definitions of “personal care services”
and “in need of personal care services.” See id. § 161,
132 Stat. at 1439–40. By doing so, it provided benefits to
additional caregivers. But it did not speak to where personal
care services must be administered for a caregiver to
be entitled to benefits. Petitioners have shown nothing
more than a vague congressional intent to expand benefits,
and that cannot overcome the statutory silence. See, e.g.,
Hyundai Steel Co. v. United States, 19 F.4th 1346, 1354–
55 (Fed. Cir. 2021) (holding general statements in the legislative
history did not express Congress’ intent regarding
the interpretive question at issue); In re Gateway Radiology
Consultants, P.A., 983 F.3d 1239, 1261 (11th Cir. 2020)
(noting legislative history rarely speaks with sufficient
clarity to resolve an interpretive question at step one).
All told, Congress has not spoken to the precise interpretive
question at issue. The text and structure of the
statute are silent. And the legislative history does not evidence
Congress’ clear intent. Thus, the Chevron step one
analysis is not decisive, and we must continue on to step
two.

  1. Step Two
    The VA’s interpretation of the statutory silence—the
    in-person requirement promulgated in 38 C.F.R. § 71.15—
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    is a permissible construction of the statute. That interpretation
    reflects the VA’s reasonable policy judgment. See
    Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
    545 U.S. 967, 986 (2005) (“[W]e defer at step two to the
    agency’s interpretation so long as the construction is a reasonable
    policy choice for the agency to make.”). And it does
    not conflict with the regulatory scheme. Accordingly, we
    must defer to the VA’s interpretation.
    The VA promulgated its definition of “in need of personal
    care services” to clarify the bounds of the family caregivers
    program. It explained how the regulatory definition
    of personal care services “does not delineate whether such
    services must be provided in person or can be provided remotely[.]”
    Proposed Rule, 85 Fed. Reg. at 13,359. Looking
    to the statutory text, the VA found that the family caregivers
    program “was intended to provide assistance to [f]amily
    [c]aregivers who are required to be physically present to
    support eligible veterans in their homes.” Id.; accord Final
    Rule, 85 Fed. Reg. at 46,228. The VA, therefore, promulgated
    a definition of “in need of personal care services” that
    limited the family caregivers program to veterans who require
    in-person care. It believed that definition “would reduce
    clinical subjectivity in [the family caregivers
    program’s] eligibility determination[] and thereby improve
    consistency in the program.” Proposed Rule, 85 Fed. Reg.
    at 13,359; accord Final Rule, 85 Fed. Reg. at 46,228. It also
    noted how the definition of “in need of personal care services”
    supports the VA’s decision to focus the family caregivers
    program “on eligible veterans with moderate [to]
    severe needs.” See Final Rule, 85 Fed. Reg. at 46,228; accord
    Proposed Rule, 85 Fed. Reg. at 13,356.
    This explanation shows the VA made a reasonable policy
    decision in promulgating its definition of “in need of personal
    care services.” It is reasonable for the VA to prefer
    clear, objective rules. A clear rule can reduce costs, promote
    predictability, and ensure uniform application. It is
    also reasonable for the VA to focus on veterans who have
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    moderate to severe needs. Indeed, the statutory text supports
    such a focus. 38 U.S.C. § 1720G(a)(2)(B) (restricting
    eligibility to veterans who have “serious injur[ies]”). And
    the VA’s definition of “in need of personal care services”
    forwards both of those goals.
    Petitioners claim the VA’s definition of “in need of personal
    care services” is entitled to less deference under Watt
    v. Alaska, 451 U.S. 259, 273 (1981). But they have failed
    to make the predicate showing necessary for Watt to apply:
    that the “current interpretation [is] in conflict with [the
    VA’s] initial position.” See id. Until the VA promulgated
    its Final Rule, it had never considered where personal care
    services must be administered. Thus, there was no “initial
    position” to create a conflict, and Watt does not apply.
    Petitioners also argue the VA has interpreted “personal
    care services” inconsistently between the family and general
    caregivers programs. Pet’rs’ Reply Br. 10. But the VA
    has not interpreted “personal care services” to include remote
    care for the general caregivers program. Indeed, the
    VA has left that question open. See Final Rule, 85 Fed.
    Reg. at 46,229 (The “VA will consider whether changes to
    the regulations governing [the general caregiver program]
    are appropriate in the future.”); see also Government’s
    Resp. Br. at 22 (quoting Proposed Rule, 85 Fed. Reg. at
    13,359). It defined where personal care services must be
    administered for the family caregivers program, but it did
    not address the general caregivers program. In effect, the
    VA provided a partial answer to the question of where personal
    care services must be administered. And the VA
    “ha[s] great discretion to treat a problem partially and regulate
    in a piecemeal fashion.” Transp. Div. of the Int’l Ass’n
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    of Sheet Metal, Air, Rail & Transp. Workers v. Fed. R.R.
    Admin., 10 F.4th 869, 875 (D.C. Cir. 2021).7
    Ultimately, the VA’s interpretation of the statutory silence
    is a permissible construction of the statute. The VA
    made a reasonable policy choice, and we must defer to that
    choice. We therefore deny the petition as to this portion of
    the Final Rule.8
    B. Serious Injury
    Petitioners next challenge the VA’s definition of “serious
    injury.” 38 C.F.R. § 71.15. That phrase appears in the
    statutory provision defining “an eligible veteran”:
    [A]n eligible veteran is any individual who . . . for
    assistance provided under this subsection [effective
    on certain dates] . . . has a serious injury (including
    traumatic brain injury, psychological
    trauma, or other mental disorder) incurred or
    7 We understand the Petitioners’ argument that, if
    the VA eventually answers that interpretive question differently
    for the general caregivers program, it may be an
    unreasonable interpretation of the statute. The statutory
    definition of “personal care services” applies to both the
    family and general caregivers program. 38 U.S.C.
    § 1720G(d)(4). And the general caregivers program, like
    the family caregivers program, is limited to those veterans
    “who need[] personal care services.” Id. § 1720G(b)(2). But
    Petitioners have not identified a regulation adopting such
    an interpretation for the general caregiver program. So
    that question is not before us.
    8 Because we set aside the VA’s definition of “need
    for supervision, protection, or instruction,” we need not address
    Petitioners’ argument that definition conflicts with
    the VA’s definition of “in need of personal care services.”
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    aggravated in the line of [active] duty [during certain
    service dates].”
    38 U.S.C. § 1720G(a)(2)(B) (emphasis added). Unless a veteran
    has a “serious injury,” his family caregivers cannot receive
    benefits under § 1720G(a).
    From 2011 through 2020, the VA defined “serious injury”
    as “any injury, including traumatic brain injury, psychological
    trauma, or other mental disorder, incurred or
    aggravated in the line of [active] duty [during certain services
    dates], that renders the veteran or servicemember in
    need of personal care services.” See 38 C.F.R. § 71.15
    (2011) (interim rule); 38 C.F.R. § 71.15 (2015) (final rule).
    As the VA recognized, this is “a virtually verbatim recitation
    of” the statutory language. Caregivers Program,
    80 Fed. Reg. 1357, 1360 (Jan. 9, 2015).
    In 2020, the VA revised its definition. Proposed Rule,
    85 Fed. Reg. at 13,365. Because the prior definition had
    not “provid[ed] guidance or clarity” as to the meaning of
    “serious injury,” the VA had problems implementing the
    family caregivers program. Id. at 13,365–66. To resolve
    those problems, the VA redefined “serious injury” to mean:
    [A]ny service-connected disability that:
    (1) Is rated at 70 percent or more by VA; or
    (2) Is combined with any other service-connected
    disability or disabilities, and a combined
    rating of 70 percent or more is
    assigned by VA.
    38 C.F.R. § 71.15.

    Petitioners argue that redefinition is inconsistent with
    and an unreasonable interpretation of the statutory text.
    We do not agree.
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  2. Step One
    Congress has not spoken to the interpretive question
    rasied in Petitioners’ second challenge—the meaning of
    “serious injury” in § 1720G(a)(2)(B). Petitioners have not
    identified a definition for that phrase, and the surrounding
    text does not completely resolve its meaning. The text provides
    insight into the meaning of “injury,” but not the
    meaning of “serious injury.” The statute is ambiguous, and
    we must defer to the VA’s resolution of that ambiguity.
    The statutory text fails to provide a definition of “serious
    injury.” That term is nowhere to be found in 38 U.S.C.
    § 1720G(d), the definitional section for the family caregivers
    program. In fact, no other provision in title 38 uses the
    phrase “serious injury.” A slight variation—“seriously injured”—
    does appear in 38 U.S.C. § 3319(h)(5)(B). But that
    subsection just cross-references § 1720G(a) without further
    defining “serious injury” or “seriously injured.” Id.
    § 3319(h)(5)(B). And no common meaning or dictionary
    definition for “serious injury” exists in the record before us.
    Accordingly, the phrase “serious injury,” by itself, lacks definite
    meaning.
    The surrounding statutory text, however, narrows the
    universe of permissible interpretations of “serious injury.”
    Congress ensured that phrase would “includ[e] traumatic
    brain injury, psychological trauma, or other mental disorder.”
    38 U.S.C. § 1720G(a)(2)(B). Thus, “serious injury”
    must include more than just physical injuries; mental disorders
    can qualify as serious. And any interpretation of
    “serious injury” that excludes all mental disorders would
    be unreasonable.
    At the same time, the statutory language does not require
    “serious injury” to include all “traumatic brain injur[
    ies], psychological trauma[s], [and] mental disorder[s].”
    Cf. id. Such an interpretation would lead to “unreasonable
    results.” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71
    (1982) (“Statutes should be interpreted to avoid untenable
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    distinctions and unreasonable results whenever possible.”).
    It would render the word serious meaningless for
    mental disorders—every mental disorder would qualify as
    a “serious injury” because every mental disorder would fall
    within the “other mental disorder” category. And it would
    create a disparity between the statute’s treatment of physical
    and mental disorders. Only serious physical disorders,
    but every mental disorder, would render a veteran eligible
    under § 1720G(a)(2)(B).
    Nor does the statutory text require “serious injury” to
    operate as a proxy for veterans who are “in need of personal
    care services.” Though much of § 1720G(a) focuses on the
    need for personal care services, § 1720G(a)(2)(B) expressly
    requires veterans to also have incurred or aggravated a serious
    injury during active-duty service. Accordingly, “serious
    injury” must be distinct from personal care services. If
    not, the phrase “serious injury” would have no meaning.
    For similar reasons, Petitioners’ arguments for linking
    “personal care services” with “serious injury” based on the
    legislative history fail. They point to an Explanatory Statement
    from Senator Akaka that seems to equate “serious injury”
    with the need for personal care services. 156 Cong.
    Rec. S2566, S2567 (Apr. 22, 2010) (“Severely injured veterans
    are defined as those who need personal care services
    because . . . .”). But the statutory text makes clear that “serious
    injury” and “in need of personal care services” are
    separate requirements for a veteran to qualify as eligible.
    And the Explanatory Statement cannot overcome the enacted
    text. E.g., Church of Scientology of Cal. v. I.R.S., 792
    F.2d 153, 162 (D.C. Cir. 1986) (“The factual inaccuracy in
    the case as originally presented to us shows the wisdom of
    relying upon the text and structure of the statute rather
    than this statement by a single senator as a means of ascertaining
    the Congress’[] intent.”).
    Likewise, the purpose of disability ratings—quantifying
    a veteran’s impairment in earning capacity—does not
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    foreclose the VA’s interpretation. Disability ratings “represent
    as far as can practicably be determined the average
    impairment in earning capacity resulting from [serviceconnected]
    diseases and injuries and their residual conditions
    in civil occupations.” 38 C.F.R. § 4.1. But that purpose
    does not prevent the VA from using disability ratings
    to define “serious injury.” It is possible that serious injuries
    are those injuries that have a great impact on a veteran’s
    earning capacity. Or, perhaps, disability ratings may serve
    as an easily administrable proxy for “serious injur[ies]” under
    the plain meaning of that phrase. Nothing in the statutory
    language, structure, or purpose forecloses that
    understanding of the word serious.
    Finally, Congress’ rejection of an amendment that
    would have limited the family caregivers program to those
    veterans who would otherwise need nursing home care
    does not foreclose the VA’s interpretation. See 155 Cong.
    Rec. S11523-02 (Nov. 19, 2009). To be sure, a veteran’s rating
    level factors into whether that veteran is entitled to
    nursing home care. 38 U.S.C. § 1710A. If the veteran has
    a 70 percent or greater disability rating and “is in need of”
    nursing home care, the VA must provide that care. But
    this does not equate eligibility under the family caregivers
    program to eligibility for nursing home care. In each instance,
    the veteran must also show he is in need of the particular
    care sought, either family caregiver benefits (see 38
    U.S.C. § 1720G(a)(2)(C)) or nursing home care (see 38
    U.S.C. § 1710A(a)(2)).
    Ultimately, the phrase “serious injury” is ambiguous.
    It has no statutory definition, and the parties have not
    identified a common meaning for that phrase. The statutory
    context provides some insight into what “injury”
    means, but it does not clarify what injuries are serious. Implicitly,
    therefore, Congress delegated that question to the
    VA. In such circumstances, we must defer to the VA’s interpretation
    of the statutory scheme.
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  3. Step Two
    The VA’s interpretation of “serious injury”—requiring
    a 70 percent disability rating—is a permissible construction
    of the statute. That interpretation reflects the VA’s
    reasonable policy judgment. Accordingly, we must defer to
    the VA’s interpretation. See Brand X, 545 U.S. at 986 (discussing
    step two).
    The VA amended its definition of “serious injury” to
    ease administration of the family caregivers program. In
    the VA’s view, its prior definition lacked clarity and led to
    “inconsistent eligibility determinations by VA providers.”
    Proposed Rule, 85 Fed. Reg. at 13,365–66. Providers had
    interpreted the word injury differently, causing inequitable
    administration of the family caregivers program. Id. at
    13,366. So the VA expanded its definition of “serious injury”
    to include all service-connected disabilities, regardless
    of whether the disability is an injury. Id. at 13,366–
  4. It noted how this definition would be “more objective,
    inclusive, and equitable,” especially for the older veterans
    now included in the family caregivers program by virtue of
    the VA MISSION Act. Id. at 13,367–68. And it explained
    how the requirement that the injury be “incurred or aggravated
    in the line of duty in the active military, naval, or air
    service” is indistinguishable from the definition of service
    connection. Proposed Rule, 85 Fed. Reg. at 13,370 (citing
    38 U.S.C. § 101(16)).
    Also, to distinguish serious injuries from non-serious
    injuries, the VA required veterans to have a 70 percent or
    higher disability rating. Id. at 13,369. It believed this
    would help focus the family caregivers program on those
    veterans with moderate to severe needs. Id. And it assessed
    other rating levels—like 50, 60, and 100 percent—
    finding them either too restrictive or too lax. Id.; see also
    Final Rule, 85 Fed. Reg. at 46,248. Moreover, it noted how
    98 percent of veterans who were participating in the family
    caregivers program at that time had a 70 percent or higher
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    rating. Final Rule, 85 Fed. Reg. at 46,248. Like the service-
    connected disability change, the VA believed adopting
    a 70 percent disability requirement “would provide a transparent
    and clearly defined standard that can be consistently
    applied throughout VA.” Proposed Rule, 85 Fed. Reg.
    at 13,369.
    Combined, these two changes decoupled the definition
    of “serious injury” from the definition of “in need of personal
    care services.” Proposed Rule, 85 Fed. Reg. at
    13,369–70. Now, “serious injury” has a definition of its
    own, rather than parroting the statutory language defining
    “in need of personal care services.” The VA noted how this
    tracks the statutory structure, which lists “serious injury”
    and “in need of personal care services” requirements as
    separate conditions for a veteran to qualify as eligible. Final
    Rule, 85 Fed. Reg. at 46,246 (citing 38 U.S.C.
    § 1720G(a)(2)(B)–(C)). Again, the VA viewed this change
    as eliminating inconsistent administration caused by the
    complexity of conducting medical evaluations.
    We cannot say the VA’s definition of “serious injury” is
    an unreasonable policy choice. The VA redefined that
    phrase in an attempt to provide clarity, reduce inequity,
    and streamline administration. Those are, no doubt, reasonable
    policy goals. And Petitioners have not persuasively
    argued that the VA’s definition of “serious injury” is
    an unreasonable effort at achieving those goals.
    Instead, Petitioners argue the VA’s “serious injury”
    definition is wholly unpersuasive and entitled to less deference
    under Watt, 451 U.S. at 273. This time, Petitioners
    have made the predicate showing necessary for Watt to apply:
    a conflict between the VA’s current position and its
    initial position on the meaning of “serious injury.” See id.
    But Petitioners overstate Watt given the Supreme Court’s
    more recent precedent on changed interpretations.
    “The Supreme Court has rejected the argument that an
    agency’s interpretation is not entitled to deference because
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    it represents a sharp break with prior interpretations of
    the statute in question.” Info. Tech. & Applications Corp.
    v. United States, 316 F.3d 1312, 1322 (Fed. Cir. 2003) (internal
    quotation marks omitted). Chevron itself involved a
    changed interpretation, 467 U.S. at 862, yet the Court deferred
    to the EPA’s interpretation. That is not to say we
    should ignore the VA’s history of inconsistent interpretations.
    See Good Samaritan Hosp. v. Shalala, 508 U.S. 402,
    417 (1993) (“[T]he consistency of an agency’s position is a
    factor in assessing the weight that position is due.”). So
    long as the change is not “sudden and unexplained” and the
    agency “take[s] account of legitimate reliance on prior interpretation,”
    the “change is not invalidating.” See Smiley
    v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742 (1996).
    The administrative record shows the VA made a reasoned
    change that accounted for settled expectations. The
    VA explained how its prior definition, which coupled the
    definition of “serious injury” and “in need of personal care
    services,” led to administration problems. Then, it set
    about resolving those problems by changing its definition
    of “serious injury.” There was ample explanation for this
    changed position, and it was far from sudden. The change
    also accounted for settled expectations. As the VA noted,
    98 percent of veterans who were eligible under the legacy
    program had a disability rating of 70 percent or higher.
    Thus, the VA’s change of opinion is “not invalidating.”
    Smiley, 517 U.S. at 742.
    Nor is the VA’s definition unreasonable because it requires
    veterans to apply for disability compensation. The
    statutory text requires the veteran’s “serious injury” to
    have been “incurred or aggravated in the line of duty in the
    active military, naval, air, or space service.” 38 U.S.C.
    § 1720G(a)(2)(B). And the definition of “service-connected”
    is almost identical:
    The term “service-connected” means, with respect
    to disability or death, that such disability was
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    incurred or aggravated, or that the death resulted
    from a disability incurred or aggravated, in line of
    duty in the active military, naval, air, or space service.
    38 U.S.C. § 101(16). It is, thus, not unreasonable to interpret
    this language as requiring service connection. Nor
    was it unreasonable for the VA to require veterans to take
    advantage of the already-existing system for evaluating
    service connection. And Petitioners have offered no reason
    why a special processing system for family caregivers program
    claims would not contribute to, rather than alleviate,
    claim processing delays.
    Finally, Petitioners claim the VA’s definition of “serious
    injury” is inconsistent with other portions of the Final
    Rule. They point to statements that family caregiver benefits
    are “not designed to supplement or replace the disability
    compensation received by the veteran.” See Final
    Rule, 85 Fed. Reg. at 46,234. So they claim family caregiver
    benefits cannot be contingent on a disability rating.
    But that conclusion does not follow. Nothing about using
    disability rating as one condition for awarding family caregiver
    benefits makes those benefits a supplement to or a
    replacement for disability compensation. The programs
    are distinct.
    In sum, the VA’s interpretation of “serious injury” in
    the statute is reasonable. The VA explained its decision to
    redefine that term, and it made a reasonable policy decision
    in promulgating the new regulatory definition. Accordingly,
    we are bound to accept the VA’s definition of
    “serious injury.” Thus, we deny Petitioners’ petition on this
    ground.
    C. Inability to Perform
    Petitioners’ third challenge is aimed at a portion of the
    statutory requirements for a veteran to qualify as an “eligible
    veteran.” A veteran must be “in need of personal care
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    services,” and there are four avenues through which a veteran
    may meet that requirement. 38 U.S.C.
    § 1720G(a)(2)(C)(i)–(iv). The first avenue is an “inability to
    perform one or more activities of daily living
    [.]” Id.
    § 1720G(a)(2)(C)(i).
    From 2011 through 2020, the regulatory scheme defined
    “inability to perform an activity of daily living (ADL)”
    as any one of the following:
    (1) Inability to dress or undress oneself;
    (2) Inability to bathe;
    (3) Inability to groom oneself in order to keep oneself
    clean and presentable;
    (4) Frequent need of adjustment of any special
    prosthetic or orthopedic appliance that, by reason
    of the particular disability, cannot be done without
    assistance (this does not include the adjustment of
    appliances that nondisabled persons would be unable
    to adjust without aid, such as supports, belts,
    lacing at the back, etc.);
    (5) Inability to toilet or attend to toileting without
    assistance;
    (6) Inability to feed oneself due to loss of coordination
    of upper extremities, extreme weakness, inability
    to swallow, or the need for a non-oral means
    of nutrition; or
    (7) Difficulty with mobility (walking, going up
    stairs, transferring from bed to chair, etc.).
    38 C.F.R. § 71.15 (2015). But nothing in that definition explained
    how frequent an “inability” was required for a veteran
    to qualify as eligible. In 2020, the VA amended its
    definition of “inability to perform an activity of daily living”
    to clarify that point:
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    Inability to perform an activity of daily living
    (ADL) means a veteran or servicemember requires
    personal care services each time he or she completes
    one or more of the following:
    (1) Dressing or undressing oneself;
    (2) Bathing;
    (3) Grooming oneself in order to keep oneself
    clean and presentable;
    (4) Adjusting any special prosthetic or orthopedic
    appliance, that by reason of the
    particular disability, cannot be done without
    assistance (this does not include the adjustment
    of appliances that nondisabled
    persons would be unable to adjust without
    aid, such as supports, belts, lacing at the
    back, etc.);
    (5) Toileting or attending to toileting;
    (6) Feeding oneself due to loss of coordination
    of upper extremities, extreme weakness,
    inability to swallow, or the need for a
    non-oral means of nutrition; or
    (7) Mobility (walking, going up stairs,
    transferring from bed to chair, etc.).
    38 C.F.R. § 71.15 (second emphasis added). That is, a veteran
    must be consistently unable to perform an activity of
    daily living to qualify as eligible. An inability that is intermittent
    or occasional will not suffice.
    Petitioners challenge the VA’s interpretation of “inability
    to perform.” They argue the VA’s requirement that the
    veteran have total inability for a single activity of daily living
    conflicts with the statutory language. They also argue,
    in the alternative, that the VA’s interpretation is an
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    unreasonable interpretation of the statutory scheme. We
    do not agree.
  5. Step One
    Congress has not spoken to the interpretive question
    rasied in this challenge—the meaning of “inability to perform”
    in § 1720G(a)(2)(C). The meaning of that phrase, to
    some extent, is clear. But the statutory text and structure
    do not speak to how often a veteran must be unable to perform
    an activity of daily living. There is a statutory gap,
    and we, therefore, must defer to the VA’s regulations filling
    that gap.
    To have an “inability to perform” an activity of daily
    living, a veteran must be wholly unable to complete that
    activity. It cannot be that the veteran can complete the
    task, but only with great effort or time. The ordinary
    meaning of “inability” prevents such an interpretation. See
    Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070
    (2018) (“[O]ur job is to interpret the words consistent with
    their ordinary meaning at the time Congress enacted the
    statute.”).
    But the surrounding statutory language adds a dimension
    that Congress has not addressed. The statute requires
    an “inability to perform one or more activities of daily living”
    for a veteran to qualify as eligible under this avenue.
    38 U.S.C. § 1720G(a)(2)(C)(i) (emphasis added). By using
    the word daily, Congress required the relevant activities to
    occur with some regularity. See also 38 C.F.R. § 71.15
    (promulgating list of activities of daily living, each of which
    involves regular conduct—like eating or bathing). While
    the word inability requires the veteran be wholly unable to
    complete the activity, it does not speak to how often that
    inability must present. A veteran may be unable to bathe
    all of the time, most of the time, or only some of the time.
    It is not clear under the statutory text what frequency is
    required. Nothing in the text, structure, or purpose of the
    statute answers that question.
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    Petitioners suggest the statutory text forecloses the
    VA’s interpretation, which requires inability each time the
    veteran attempts an activity, but their argument is not persuasive.
    Petitioners focus on a single phrase—“one or
    more”—for support. But the statute’s use of that phrase in
    “inability to perform one or more activities of daily living”
    provides no insight into how pervasive an inability is required.
    It means only that, whatever inability is required,
    a veteran need only show an inability for one or more activities
    of daily living. This language does not undermine
    the VA’s decision to focus on activities of daily living individually,
    rather than as a unit.
    Nor does the VA’s interpretation lead to an absurd result.
    See Nat’l Ass’n of Mfrs. v. Dep’t of Treasury, 10 F.4th
    1279, 1288 (Fed. Cir. 2021) (invalidating regulation at step
    one based on absurdity). To be sure, the VA’s interpretation
    would prevent a veteran who required assistance
    99 percent of the time for all activities of daily living from
    receiving benefits. But this single hypothetical, at the very
    extreme of possibility, does not render the VA’s interpretation
    absurd. Cf. U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166,
    179 (1980) (“[T]he task of classifying persons for . . . benefits
    inevitably requires that some persons who have an almost
    equally strong claim to favored treatment be placed
    on different sides of the line[.]”) (internal quotation marks
    omitted). And Petitioners have not meaningfully challenged
    the VA’s finding that the impact of this hypothetical
    will be minor. See Final Rule, 85 Fed. Reg. at 46,234 (“We
    believe that if a veteran or servicemember needs assistance
    with multiple ADLs, it is likely that at least one of those
    ADLs requires assistance each time the ADL is completed.”).
    Petitioners also suggest the VA lacked authority to resolve
    the statutory silence or, at least, to resolve that question
    by requiring inability each time a veteran completes
    an activity of daily living. Pet’rs’ Br. 27. But Congress delegated
    to the VA authority to administer the family
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    caregivers program. 38 U.S.C. § 1720G(a)(2)(A). And that
    delegation comes with the ability to promulgate regulations
    to fill gaps in the statutory scheme. Morton v. Ruiz,
    415 U.S. 199, 231 (1974) (“The power of an administrative
    agency to administer a congressionally created and funded
    program necessarily requires . . . the making of rules to fill
    any gap left, implicitly or explicitly, by Congress.”).
    Ultimately, Congress left a gap in the statute. It required
    an “inability to perform one or more activities of
    daily living,” but it did not speak to how often an inability
    is required. The VA promulgated a regulation answering
    that question, and we must defer to that interpretation.
  6. Step Two
    The VA’s interpretation of “inability to perform”—requiring
    permanent inability—is a permissible construction
    of the statute. It is a product of the VA’s reasonable policy
    judgment, so we are bound to follow the VA’s interpretation.
    See Brand X, 545 U.S. at 986 (discussing step two).
    The VA interpreted “inability to perform one or more
    activities of daily living” to clarify the eligibility requirements
    for the family caregivers program and to ease its administration
    of that program. See, e.g., Proposed Rule, 85
    Fed. Reg. at 13,360–61. The VA also noted how this definition
    supported its goal of focusing the family caregivers
    program on those veterans who have moderate to severe
    needs. See, e.g., id. at 13,360. These are reasonable policy
    goals, see supra § II(A)(2), and Petitioners have offered no
    persuasive arguments for why the VA’s interpretation is
    not a reasonable effort at accomplishing those goals.
    Petitioners claim this rule should receive considerably
    less deference under Watt, 451 U.S. at 273. Yet they fail to
    make the predicate showing necessary for Watt to apply:
    an inconsistency between the VA’s current and former interpretations.
    They claim the VA’s definition of “inability
    to perform one or more activities of daily living” contradicts
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    the prior regulatory framework, which they read to use pervasiveness
    only in setting caregivers’ stipend levels. But
    Petitioners misunderstand those regulations.
    In 2015, the VA promulgated a rating scale for det ermining
    t he stipend amount provided to primary caregivers.
    See 38 C.F.R. § 71.40(c)(4) (2015). For each activity of daily
    living, the VA assigned each veteran a score from zero to
    four:
    Score Veter an’s Ability
    Zero completes the task/activity without assist ance
    requires minimal assistance (can complete 75
    One percent or more of t he task wit hout super vision
    or assistance)
    requires moder ate assistance (can complete 50
    Two percent to 7 4 percent of the task without assistance)
    requires maximal assist ance (can complete 25
    Three percent to 49 percent of the task without assistance)
    requires tot al assistance (can complete less than
    Four 25 percent of t he task or is unable to do t he task
    without assistance)
    See id.§ 71.40(c)(4)(iii) (2015) (r eformatted). The VA t hen
    summed those scores and assigned primary family caregivers
    a stipend amount based on that sum. Id.
    § 71.40(c)(4)(iv)- (v) (2015). This framework does not , as
    Petitioners suggest, address how often a veter an requires
    assistance to complete an activity of daily living. It is focused
    on how much assistance-minimal, moderat e, maximal,
    or total-is needed for each activity. Because the
    stipend schedule had nothing to say about how often a veteran
    needed assistance, it cannot conflict with t he VA’s
    “each time” requirement .
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    Petitioners also claim the rule is unreasonable because
    it excludes many veterans who deserve benefits and because
    the VA could have adopted a less draconian rule—
    like needing assistance 50 or 70 percent of the time—that
    is still clear and administrable. But this argument does
    not undermine the reasonableness of the VA’s regulation.
    In effect, Petitioners believe the VA should have chosen a
    different rule. They would prefer the VA to have set its
    bright-line at a lower level. We cannot, however, set aside
    the VA’s reasonable interpretation of the statute simply because
    we (or Petitioners) might prefer a different interpretation.
    Deacero S.A.P.I. de C.V. v. United States, 996 F.3d
    1283, 1295 (Fed. Cir. 2021) (“The agency’s construction
    need not be the only reasonable interpretation or even the
    most reasonable interpretation.”). Congress delegated to
    the VA the authority fill gaps in the statutory scheme. If
    the VA’s interpretation is reasonable, it must be upheld.
    To conclude, the VA’s interpretation of “inability to perform
    one or more activities of daily living” is reasonable. In
    such circumstances, we are bound to adhere to the VA’s interpretation.
    So we deny the Petitioners’ petition on this
    ground.
    D. Need for Supervision, Protection, or Instruction
    Petitioners next challenge the VA’s interpretation of
    two of the remaining avenues through which a veteran may
    qualify as “in need of personal care services.” 38 U.S.C.
    § 1720G(a)(2)(C). Those avenues are available to veterans
    who need supervision, instruction, or protection:
    For purposes of this subsection, an eligible veteran
    is any individual who—
    (C) is in need of personal care services because
    of . . .
    (ii) a need for supervision or protection
    based on symptoms or
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    residuals of neurological or other
    impairment or injury; [or]
    (iii) a need for regular or extensive
    instruction or supervision without
    which the ability of the veteran to
    function in daily life would be seriously
    impaired[.]
    Id. Congress added the latter avenue, subsection (iii), in
    the VA MISSION Act of 2018 in an effort to expand benefits.
    After that Act, the VA promulgated a regulatory definition
    aimed at implementing both subsections (ii) and (iii):
    Need for supervision, protection, or instruction
    means an individual has a functional impairment
    that directly impacts the individual’s ability to
    maintain his or her personal safety on a daily basis.
    38 C.F.R. § 71.15.
    Petitioners claim the VA’s regulation is inconsistent
    with the statutory text, which creates two distinct pathways
    that the VA has improperly combined into a single
    definition. They also claim the VA’s interpretation is not
    reasonable. We agree the VA’s rule fails at step one, and
    therefore, we need not reach step two.
    By requiring “supervision . . . on a daily basis,” the VA’s
    interpretation conflicts with the statutory text. Subsections
    (ii) and (iii) both relate to a veteran’s need for supervision,
    but Congress used different terms when describing
    that need. For subsection (ii), it required the veteran be in
    need of “supervision or protection.” But for subsection (iii),
    Congress required that a veteran be in need of “regular or
    extensive . . . supervision.” Presumably, this change in
    phrasing carries meaning. E.g., Sosa v. Alvarez–Machain,
    542 U.S. 692, 711 n.9 (2004) (“[W]hen the legislature uses
    certain language in one part of the statute and different
    language in another, the court assumes different meanings
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    were intended.”). So the VA’s decision to create a single
    frequency requirement for supervision is inconsistent with
    the statutory language.
    The VA’s interpretation further conflicts with the statutory
    language by requiring “a functional impairment that
    directly impacts the individual’s ability to maintain his or
    her personal safety.” See 38 C.F.R. § 71.15. To be sure,
    part of subsection (ii) relates to a veteran’s need for “protection
    based on symptoms or residuals of neurological or
    other impairment or injury.” And by using the word protection,
    Congress focused this portion of the statute on the
    personal safety of veterans. But subsection (ii) also covers
    a veteran’s need for “supervision . . . based on symptoms or
    residuals” of an impairment or injury, and nothing in that
    portion of the statute implicates personal safety. Nor is
    subsection (iii) limited to personal safety concerns. It only
    requires that, without instruction or supervision, “the ability
    of the veteran to function in daily life would be seriously
    impaired.” That phrase, while it may include personal
    safety concerns, is unambiguously broad enough to encompass
    impairments that do not implicate personal safety.
    Thus, some aspects of the statutory language provide benefits
    to veterans who need supervision or instruction but
    would not risk their personal safety in the absence of that
    care. Accordingly, the VA’s personal safety requirement is
    inconsistent with the statutory text.
    To be clear, we do not hold the VA cannot promulgate
    a regulation to account for both subsection (ii) and subsection
    (iii). We see nothing in the statutory text, structure,
    or purpose that forecloses such an interpretation. But if
    the VA chooses to promulgate a single regulatory definition,
    its definition must be consistent with the text of both
    statutory provisions. Because the current regulation does
    not meet that requirement, we must set it aside at step one.
    We, therefore, grant the petition on this ground.
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    E. Geographic Residence
    Petitioners’ fifth challenge goes to the VA’s imposition
    of a geographic residence requirement. From 2011 until
    2020, the VA had a practice of providing family caregiver
    benefits only to caregivers who reside in the United States.
    See Proposed Rule, 85 Fed. Reg. at 13,358. In overhauling
    the regulatory framework implementing the family caregivers
    program, the VA added regulatory language formalizing
    that practice:
    This part regulates the provision of benefits under
    the Program of Comprehensive Assistance for
    Family Caregivers and the Program of General
    Caregiver Support Services authorized by 38
    U.S.C. 1720G. Persons eligible for such benefits
    may be eligible for other VA benefits based on other
    laws or other parts of this title. These benefits are
    provided only to those individuals residing in a
    State as that term is defined in 38 U.S.C. 101(20).
    38 C.F.R. § 71.10(b).
    Petitioners challenge this requirement at both steps of
    the Chevron framework. First, they claim the residency
    requirement is inconsistent with the statutory language,
    which does not impose such a requirement. Second, they
    argue that requirement is also an unreasonable interpretation
    of the statutory language. We do not agree.
  7. Step One
    Congress has not spoken to the precise interpretive
    question at issue in this challenge—whether a caregiver
    must reside within the United States to be entitled to benefits.
    The statutory text is silent on that point, and the
    statutory structure provides no additional clarity. There
    is, in short, a statutory gap.
    To begin, we look to the text of the statute. Nothing in
    § 1720G(a) compels or forecloses the VA from imposing a
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    geographic residency requirement. There is no provision
    directed to residency, nor is there a provision suggesting
    that the caregivers who reside abroad are entitled to benefits.
    That is, the statutory language is silent.
    Petitioners claim the statutory guidelines for caregiver
    stipends foreclose the VA’s interpretation, but we do not
    agree. As described above, see supra § II(A)(1), the statute
    provides guidelines for setting caregiver stipend amounts.
    One guideline relates to the stipend afforded primary family
    caregivers:
    The Secretary shall ensure, to the extent practicable,
    . . . that the amount of the monthly personal
    caregiver stipend . . . is not less than the monthly
    amount a commercial home health care entity
    would pay an individual in the geographic area of
    the eligible veteran to provide equivalent personal
    care services to the eligible veteran.
    Id. § 1720G(a)(3)(C)(ii) (emphasis added). To be sure, the
    statute requires the VA to account for geographic location
    when setting compensation. But it does nothing to resolve
    the statutory silence here, which relates to the eligibility
    for benefits not the amount of benefits. Moreover, that
    Congress addressed geographic location in one provision
    (stipends) but chose to remain silent elsewhere (entitlement)
    does not prevent the VA from regulating to fill a statutory
    gap. See Catawba Cnty., 571 F.3d at 36 (“[A]
    congressional mandate in one section and silence in another
    often suggests not a prohibition but simply a decision
    not to mandate any solution in the second context, i.e., to
    leave the question to agency discretion.”). No part of the
    Caregiver Act suggests that silence was meant to limit the
    VA’s authority—especially given Congress’ express delegation
    of authority to the VA. See 38 U.S.C. § 1720G(a).
    For similar reasons, Congress’ creation of the foreign
    medical program does not undermine the VA’s interpretation.
    That program affords the VA discretion to provide
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    certain medical benefits to veterans who live abroad. See
    id. § 1724(b)–(c). That is, Congress expressly addressed
    how veterans’ residency affects their entitlement to certain
    medical benefits. But the fact that Congress spoke in one
    place (the foreign medical program), while remaining silent
    in another (the family caregivers program), does not foreclose
    the VA’s interpretation here. There is no reason to
    believe that silence was a proscription given Congress’ express
    delegation of authority to the VA. See Catawba
    Cnty., 571 F.3d at 36 (discussing impact of silence); see also
    38 U.S.C. § 1720G(a) (delegating authority).
    Nor could the family caregivers program be administered
    through the foreign medical program. The foreign
    medical program allows the VA to provide “medical care,”
    including “noninstitutional extended care services,” to nonresident
    veterans. 38 U.S.C. § 1724; see also 38 U.S.C.
    § 1701(6)(E) (defining “medical care”). That does not mean,
    however, that a caregiver can receive family caregiver benefits
    through that program. The programs are aimed at
    different populations and provide different benefits.
    In sum, Congress has not spoken to whether a caregiver
    must reside within the United States to be entitled to
    benefits. And it expressly delegated the VA authority to
    establish the family caregivers program. In such circumstances,
    we must defer to the VA’s reasonable gap-filling
    regulations.
  8. Step Two
    The VA’s imposition of a geographic residency requirement
    is a permissible construction of the statute. It is a
    product of the VA’s reasonable policy judgment, and it is
    not entitled to less deference at step two. Thus, we defer
    to the VA’s interpretation. See Brand X, 545 U.S. at 986
    (discussing step two).
    The VA promulgated the residency requirement to formalize
    its long-standing practice of limiting benefits to
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    U.S.-based caregivers. Since passage of the Caregivers
    Act, the VA limited its administration to the United States.
    It believed that “it [wa]s not currently feasible for [the] VA
    to provide benefits [under the Caregivers Act] outside of a
    State.” Proposed Rule, 85 Fed. Reg. at 13,358; accord Final
    Rule, 85 Fed. Reg. at 46,227. That belief was supported by
    the nature of the benefits provided under the family caregivers
    program, like in-home visits and respite care. Those
    benefits would be difficult to provide outside the United
    States, and the VA concluded the high costs outweighed the
    benefits. Id.
    We cannot say the VA made an unreasonable policy
    choice limiting the family caregivers program to those caregivers
    who reside in the United States. Much of the family
    caregivers program involves oversight and benefits that
    would be difficult to administer abroad. Home health visits
    and respite care, for example, would be difficult to administer
    in a foreign country. See 38 U.S.C. § 1720G(a)(9)(c)
    (providing VA authority to review directly the quality of
    personal care services provided to the eligible veteran in
    the veteran’s home); id. § 1720(a)(3)(B) (describing respite
    care). And Petitioners have offered no persuasive arguments
    undermining the reasonableness of the VA’s regulatory
    decision.
    Petitioners claim this regulation is entitled to “less deference
    than usual” because it does not relate to the VA’s
    substantive expertise. Pet’rs’ Br. 51 (citing Gonzales v. Oregon,
    546 U.S. 243, 269 (2006); Kisor, 139 S. Ct. at 2419).
    They focus on how this is a geographic requirement, and
    how the VA lacks expertise in matters of geography. While
    the VA may lack experience in matters of geography, Petitioners
    ignore the underlying policies motivating the VA’s
    interpretation. The VA promulgated its residency requirement
    because of difficulties administering the Caregivers
    Program abroad. Those difficulties, which relate to how
    veterans’ benefits should be administered, fit squarely
    within the VA’s expertise. So the geographic nature of this
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    rule does not undermine our obligation to defer to the VA’s
    reasonable interpretations.9
    Petitioners also argue the VA’s interpretation is entitled
    to less deference under Watt, 451 U.S. at 273, but they
    have failed to show the requisite inconsistency. They claim
    the residency requirement is inconsistent with the VA’s
    current definition of serious injury. But that is not the concern
    Watt is aimed at addressing. Watt is directed to agencies’
    changed interpretations, i.e., when an agency’s
    “current interpretation [is] in conflict with its initial position.”
    451 U.S. at 273. Petitioners identify no change in
    the VA’s position, which has been consistent throughout its
    administration of the Caregivers program. Veterans outside
    the United States have never received benefits.
    Petitioners only posit an internal inconsistency in the
    VA’s current regulations. Internal inconsistency can render
    an interpretation unreasonable, arbitrary, or capricious.
    See, e.g., Air Line Pilots Ass’n v. F.A.A., 3 F.3d 449,
    453 (D.C. Cir. 1993). But Petitioners have failed to identify
    any internal inconsistency. Their argument depends on
    the family caregivers program being administered through
    the foreign medical program—an argument we have already
    rejected.
    Finally, Petitioners claim the VA’s definition is unreasonable
    because the VA provides other programs outside
    9 It is also not clear that a lack of substantive expertise
    prevents Chevron deference, rather than Auer or Skidmore
    deference. See Gonzales, 546 U.S. 243, 269 (2006)
    (discussing deference under Skidmore v. Swift & Co., 323
    U.S. 134 (1944)); Kisor, 139 S. Ct. at 2419 (discussing deference
    under Auer v. Robbins, 519 U.S. 452 (1997)). As
    Justice Roberts’ concurrence in Kisor notes, these doctrines
    have different concerns. Kisor, 139 S. Ct. at 2424–25. We
    need not address that question here.
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    the United States. It is not, however, unreasonable for the
    VA to provide some programs abroad while limiting the
    family and general caregivers program to U.S.-based veterans.
    The VA found that it was “not feasible for [it] to
    provide [those programs] outside of [the United States].”
    See Final Rule, 85 Fed. Reg. at 46,227. And Petitioners
    have failed to show that conclusion is unreasonable. Indeed,
    each of the programs Petitioners cite recognize the
    VA’s discretion to assess feasibility of administration
    abroad. See 38 C.F.R. §§ 17.35 (providing the VA discretion
    to provide hospital services abroad), 21.130 (affording the
    VA discretion to provide educational courses abroad when
    the VA determines it is “in the best interest of the veteran
    and the Federal Government”), 36.4405(b)(5) (allowing VA
    to provide specially adapted housing grants to be applied
    to houses outside the United States if the VA “has determined
    that is reasonably practicable”). So these provisions
    support the VA’s ability to assess the feasibility of administering
    benefits outside the United States.
    In conclusion, the VA’s interpretation is reasonable. It
    is the product of a reasonable policy choice, weighing the
    costs and benefits of administration outside the United
    States. And Petitioners have failed to identify any inconsistency
    within the current regulatory framework or between
    the current framework and the VA’s past
    interpretation. In such circumstances, we must defer to
    the VA’s interpretation. Accordingly, we deny the petition
    on this ground.
    F. Monthly Stipend Rate
    Petitioners’ sixth challenge focuses on the VA’s schedule
    for stipend payments. Congress delegated authority to
    set the level of stipend payments afforded primary family
    caregivers:
    The amount of the monthly personal caregiver stipend
    provided under subparagraph (A)(ii)(V) shall
    be determined in accordance with a schedule
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    established by the [VA] that specifies stipends
    based upon the amount and degree of personal care
    services provided.
    38 U.S.C. § 1720G(a)(3)(C)(i). But it restricted the scope of
    the VA’s authority by setting a minimum compensation
    level, id. § 1720G(a)(3)(C)(ii), and by requiring the schedule
    account for certain factors, id. § 1720G(a)(3)(C)(i), (iii).
    In 2015, the VA exercised its delegated authority by
    promulgating a schedule for stipend amounts. 38 C.F.R.
    § 71.40 (2015). That schedule, described in § II(D)(2), assigned
    caregivers a stipend amount based on how much
    care a veteran needed to complete his activities of daily living.
    Id. For example, if the sum of a veteran’s clinical rating
    scores was 21 or greater, his caregiver was entitled to
    a stipend that approximated 40 hours of caregiver assistance.
    Thus, the VA would multiply 40 hours by the caregiver’s
    “combined rate” to arrive at the stipend amount.
    And it defined “combined rate” as:
    [T]he Bureau of Labor Statistics (BLS) hourly
    wage rate for home health aides at the 75th percentile
    in the eligible veteran’s geographic area of
    residence, multiplied by the Consumer Price Index
    for All Urban Consumers (CPI–U). The combined
    rate will be determined for each geographic area on
    an annual basis. For each geographic area, the
    combined rate will be the higher of:
    (1) The most recent BLS hourly wage rate
    for home health aides at the 75th percentile
    in the geographic area multiplied by the
    most recent CPI–U; or
    (2) The combined rate applied for the geographic
    area in the previous year.
    38 C.F.R. § 71.15 (2015).
    Case: 21-1378 Document: 56 Page: 44 Filed: 03/25/2022
    VETERAN WARRIORS, INC. v.
    SECRETARY OF VETERANS AFFAIRS
    45
    In 2020, the VA amended its schedule for stipend
    amounts. It removed reliance on the clinical rating scores
    and, instead, set stipend amounts based on whether the
    veteran is “unable to self-sustain in the community.” If so,
    the veteran’s caregiver is entitled to a full stipend amount;
    and if not, the veteran’s caregiver is only entitled to 62.5
    percent of the full stipend amount. 38 C.F.R. 71.40(c)(4)(i).
    Rather than calculating the full stipend amount based on
    a “combined rate,” the VA pivoted to using a “monthly stipend
    rate.” And it defined that term:
    [T]he Office of Personnel Management (OPM) General
    Schedule (GS) Annual Rate for grade 4, step 1,
    based on the locality pay area in which the eligible
    veteran resides, divided by 12.
    38 C.F.R. § 71.15.
    Petitioners challenge the VA’s definition of “monthly
    stipend rate.” They claim that definition, by incorporating
    the GS scale, is inconsistent with the statutory framework.
    They also argue it is an unreasonable interpretation of the
    statute. We do not agree.
  9. Step One
    Congress expressly left a statutory gap for the VA to
    fill, the schedule for stipend payments under the family
    caregivers program. And Petitioners have failed to show
    the VA’s decision to rely on the GS scale when filling that
    gap is inconsistent with the statutory text, structure, or
    purpose.
    Petitioners claim the VA’s reliance on the GS scale is
    inconsistent with 38 U.S.C. § 1720G(a)(3)(C)(ii), but we do
    not agree. That statutory section requires the VA ensure,
    “to the extent practicable,” stipend amounts are “not less
    than the monthly amount a commercial home health care
    entity would pay an individual in the geographic area of
    the eligible veteran to provide equivalent personal care services
    to the eligible veteran.” Id. Contrary to Petitioners’
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    VETERAN WARRIORS, INC. v.
    SECRETARY OF VETERANS AFFAIRS
    46
    view, nothing about this statute requires the VA to use a
    commercial rate. It just sets a minimum stipend amount
    the VA must strive to achieve. Congress left it to the VA to
    determine how to accomplish that directive, whether by
    adopting a commercial rate or adopting some other rate
    that is at least as great as the commercial rate. The statute
    is, in other words, silent.
    Petitioners also claim Congress’ choice to use the GS
    scale in other circumstances, but not for the family caregivers
    program, forecloses the VA’s interpretation. But Congress’
    mandate in one section and silence in the family
    caregivers program does not indicate a proscription. See
    Catawba Cnty., 571 F.3d at 36. That is especially true
    when, as here, Congress expressly provided the VA authority
    to fill this statutory gap. The statutory silence is best
    interpreted as a delegation to the VA.
    Finally, nothing about the history or purpose of the
    Caregiver Act precludes the VA’s interpretation. Petitioners
    point to how the statutory text has not changed in 10
    years, but that just shows that Congress has left a statutory
    gap for 10 years. It is not evidence of Congress’ unambiguous
    intent.
    In sum, Congress left a statutory gap. It delegated to
    the VA authority to promulgate a schedule for stipend
    amounts, provided the VA’s schedule met certain statutory
    requirements. And the VA promulgated a schedule consistent
    with those requirements, using the GS scale to set
    stipend amounts. Thus, we must defer to that regulation
    at step two.
  10. Step Two
    The VA’s use of the GS scale is a permissible construction
    of the statute. It is a product of the VA’s reasonable
    policy judgment, which we are bound to follow. See Brand
    X, 545 U.S. at 986 (discussing step two).
    Case: 21-1378 Document: 56 Page: 46 Filed: 03/25/2022
    VETERAN WARRIORS, INC. v.
    SECRETARY OF VETERANS AFFAIRS
    47
    The VA relied on the GS scale in setting stipend
    amounts because it was “an appropriate reference point.”
    Proposed Rule, 85 Fed. Reg. at 13,382. The GS scale “historically
    tracked closely with median wage growth for
    home health aides” and “accounts for variations in cost-ofliving
    across the [United States.]” Id. Also, by relying on
    a single grade and step, the VA “ensure[d] more consistent,
    transparent, and predictable stipend payments” for primary
    family caregivers. Id. To ensure the GS wage rate
    tracks private sector wages for home health aides, the VA
    went through an extensive analysis. Id. at 13,382–83. And
    it artificially inflated the selected GS grade and step to ensure
    family caregivers receive a large enough stipend. Id.
    at 13,383.
    Also, the VA viewed its new definition as remedying
    many of the problems associated with reliance on the BLS
    hourly wage rate. Id. at 13,382. The BLS rate required
    manual calculations, while the GS scale allowed automation.
    The VA noted how using the GS scale would also
    cause less fluctuation in stipend amounts and would ensure
    greater transparency than reliance on the BLS hourly
    wage rate. Id.
    We cannot say this was an unreasonable policy decision.
    It is reasonable for the VA to prefer a clear, more
    easily administrable metric for primary family caregiver
    stipends. And the VA went to great lengths to ensure that
    this stipend amount was at least equivalent to, if not
    greater than, the annual salary paid to a home health aide
    in the commercial sector. And Petitioners have offered no
    persuasive arguments undermining the VA’s policy decision.
    Like for their other challenges, Petitioners argue the
    regulation is wholly unpersuasive and entitled to less deference
    under Watt, 451 U.S. at 273. Here, Petitioners have
    made the predicate showing necessary for Watt to apply: a
    conflict between the VA’s current position and its initial
    Case: 21-1378 Document: 56 Page: 47 Filed: 03/25/2022
    VETERAN WARRIORS, INC. v.
    SECRETARY OF VETERANS AFFAIRS
    48
    position. See id. Before, the VA relied on the BLS hourly
    wage rage, and now, it relies on the GS scale. But the VA
    provided a reasoned, reasonable explanation for why it
    adopted that change. See supra § II(B)(2) (discussing how
    Watt and subsequent Supreme Court cases allow the VA to
    change its policy decisions). And it accounted for settled
    expectations, providing an adjustment period. See 38
    C.F.R. § 71.40(c)(4). In such circumstances, the VA’s decision
    to change its stipend calculation formula does not invalidate
    the VA’s exercise of its regulatory authority.
    Ultimately, the VA’s interpretation is a permissible
    construction of the statute. Congress left a gap, and the
    VA reasonably filled that gap by promulgating a schedule
    for stipends. In such circumstances, we are bound to accept
    the VA’s statutory interpretation. Accordingly, we deny
    the petition on this ground.
    G. Unable to Self-Sustain
    Petitioners’ final challenge is to the VA’s standard for
    providing a primary family caregiver full stipend benefits:
    that the veteran is “unable to self-sustain in the community.”
    If the veteran is unable to self-sustain, his primary
    family caregiver is entitled to the maximum stipend
    amount. If not, the veteran’s primary family caregiver is
    entitled to only 62.5 percent of the maximum stipend
    amount. The VA’s definition of that phrase turns on a veteran’s
    need for personal care services:
    Unable to self-sustain in the community means
    that an eligible veteran:
    (1) Requires personal care services each
    time he or she completes three or more of
    the seven activities of daily living (ADL)
    listed in the definition of an inability to perform
    an activity of daily living in this section,
    and is fully dependent on a caregiver
    to complete such ADLs; or
    Case: 21-1378 Document: 56 Page: 48 Filed: 03/25/2022
    VETERAN WARRIORS, INC. v.
    SECRETARY OF VETERANS AFFAIRS
    49
    (2) Has a need for supervision, protection,
    or instruction on a continuous basis.
    38 C.F.R. § 71.15.
    Petitioners challenge this definition as violating both
    steps of the Chevron inquiry. First, they claim this definition
    conflicts with various parts of the statute. Second,
    they claim the VA’s interpretation is entitled to less deference
    and is an unreasonable interpretation of the statute.
    We do not agree.10
  11. Step One
    Congress expressly left a statutory gap for the VA to
    fill: the schedule for stipend payments under the family
    caregivers program. See 38 U.S.C. § 1720G(a)(3). And Petitioners
    have failed to show the VA’s decision to establish
    a two-tiered framework for benefits based on its definition
    of “unable to self-sustain in the community” conflicts with
    the statute. Accordingly, we cannot resolve this question
    at step one.
    The VA’s stipend schedule takes into account the required
    statutory factors. Congress imposed certain limits
    on the VA’s discretion to set the primary family caregivers’
    stipend amounts:
    (i) The amount of the monthly personal caregiver
    stipend provided . . . shall be determined in accordance
    with a schedule established by the Secretary
    that specifies stipends based upon the amount and
    degree of personal care services provided. . . .
    (iii) In determining the amount and degree of personal
    care services . . . with respect to an eligible
    10 Because Petitioners lack standing to challenge the
    three-or-more requirement, see supra § I, we do not address
    their arguments on that front.
    Case: 21-1378 Document: 56 Page: 49 Filed: 03/25/2022
    VETERAN WARRIORS, INC. v.
    SECRETARY OF VETERANS AFFAIRS
    50
    veteran whose need for personal care services is
    based in whole or in part on a need for supervision
    or protection . . . or regular instruction or supervision
    . . . , the Secretary shall take into account the
    following:
    (I) The assessment by the family caregiver
    of the needs and limitations of the veteran[;]
    (II) The extent to which the veteran can
    function safely and independently in the
    absence of such supervision, protection, or
    instruction[; and11]
    (III) The amount of time required for the
    family caregiver to provide such supervision,
    protection, or instruction to the veteran.
    38 U.S.C. § 1720G(a)(3)(C). And the definition of “unable
    to self-sustain” accounts for these factors. It looks to
    whether a veteran needs assistance “on a continuous basis,”
    which accounts for the extent of assistance required,
    see id. § 1720G(a)(3)(C)(ii), and the time required to provide
    assistance, see id. § 1720G(a)(3)(C)(iii). The VA has,
    moreover, indicated that its determination of continuous
    need will account for the family caregiver’s assessment.
    11 This provision does not use conjunctive (“and”) or
    disjunctive (“or”) language, but context makes clear the
    conjunctive applies. These categories are not different avenues
    for reaching the same outcome, like the paths for a
    veteran to be eligible. See supra at note 6 (discussing
    § 1720G(d)(4)). They are separate considerations that supplement
    one another. And there is no other provision using
    the disjunctive or conjunctive to describe these considerations.
    Contra id.
    Case: 21-1378 Document: 56 Page: 50 Filed: 03/25/2022
    VETERAN WARRIORS, INC. v.
    SECRETARY OF VETERANS AFFAIRS
    51
    Final Rule, 85 Fed. Reg. at 46,264; Proposed Rule, 85 Fed.
    Reg. at 13,379.
    The VA’s standard for “on a continuous basis” is also
    consistent with the statutory text. The VA described that
    phrase as meaning “a regular, consistent, and prevalent
    need.” See Final Rule, 85 Fed. Reg. at 46,273. And it indicated
    that “a continuous basis” is greater than a daily need.
    Proposed Rule, 85 Fed. Reg. at 13,384. Petitioners have
    failed to identify any text that conflicts with this requirement,
    instead arguing nothing in the text supports the continuous
    basis language. But that argument just identifies
    silence in the statutory scheme, and the VA has authority
    to fill the statutory silence with a reasonable regulation.
    Petitioners also suggest that flaws in the VA’s definition
    of “need for supervision, protection, or instruction” undermine
    the VA’s stipend schedule. But nothing in that
    schedule relies on the impermissible portions of the VA’s
    “need for supervision, protection, or instruction” definition.
    We set aside that definition because its “personal safety”
    and “daily basis” requirements conflict with the statutory
    text. And neither of those requirements is incorporated in
    the VA’s definition of “unable to self-sustain in the community.”
    To be sure, like the VA’s definition of “need for supervision,
    protection, or instruction,” its definition of
    “unable to self-sustain in the community” combines two
    statutory subsections into a single regulatory definition.
    But we see no problem with that under the statutory text.
    Ultimately, Congress expressly left a statutory gap. It
    delegated the VA authority to promulgate a schedule for
    stipend amounts, provided the VA’s schedule met certain
    statutory requirements. And the VA promulgated a schedule
    that is consistent with those requirements. Thus, we
    must defer to that regulation at step two.
    Case: 21-1378 Document: 56 Page: 51 Filed: 03/25/2022
    VETERAN WARRIORS, INC. v.
    SECRETARY OF VETERANS AFFAIRS
    52
  12. Step Two
    The VA’s reliance on, and definition of, a veteran being
    “unable to self-sustain in the community” is a permissible
    construction of the statute. It is a product of the VA’s reasonable
    policy judgment and is entitled to deference at step
    two. Thus, we are bound to follow the VA’s interpretation.
    See Brand X, 545 U.S. at 986 (discussing step two).
    The VA altered its stipend schedule because it found
    “that utilization of the three tiers set forth in the [prior]
    regulations ha[d] resulted in inconsistent assignment of
    [the] ‘amount and degree of personal care services provided.’”
    Proposed Rule, 85 Fed. Reg. at 13,383. The prior
    regulatory framework lacked “clear thresholds that” could
    be “easily understood and consistently applied,” which
    “contributed to an emphasis on reassessment to ensure appropriate
    stipend tier assignment.” Id. So the VA chose to
    employ a two-tiered framework with a clear delineation between
    the high and low tiers. Id.; see also Final Rule, 85
    Fed. Reg. at 46,271. And it delineated between those tiers
    using its definition of “unable to self-sustain in the community,”
    which accounts for the statutory requirements. Proposed
    Rule, 85 Fed. Reg. at 13,383–84. It believed that
    definition would provide a clear distinction between those
    veterans with moderate needs and those veterans with severe
    needs. Id.
    We cannot say this was an unreasonable policy choice.
    The VA experienced difficulty in administering the family
    caregivers program, so it altered its regulations to ease
    those difficulties. Providing clear administrable rules is a
    reasonable policy goal. And Petitioners have not persuasively
    argued the VA’s regulation is an unreasonable effort
    at achieving that goal.
    They claim the VA’s definition of “unable to self-sustain
    in the community” is unreasonably high. That is, the VA
    should not have required a continuous need for a veteran’s
    caregiver to be entitled to the full stipend amount. But
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    VETERAN WARRIORS, INC. v.
    SECRETARY OF VETERANS AFFAIRS
    53
    Petitioners offer no reason why this regulation is unreasonable,
    and we cannot set aside a regulation simply because
    Petitioner would have preferred a lower bar. See Deacero,
    996 F.3d at 1295.
    Petitioners also argue the VA’s focus on moderately to
    severely injured veterans does not comport with the statutory
    framework. But it was reasonable for the VA to consider
    focusing the family caregivers program on
    moderately to severely injured veterans, as such a focus
    finds support in the statute. See 38 U.S.C. § 1720G(a)(2)
    (requiring serious injury). It was also reasonable, given the
    VA’s focus on those veterans, for the VA to establish a twotiered
    framework aimed at distinguishing moderately injured
    veterans from severely injured veterans. Petitioners
    have not provided any persuasive arguments undermining
    this policy decision.
    Petitioners finally argue the VA’s stipend schedule is
    wholly unpersuasive and entitled to less deference under
    Watt, 451 U.S. at 273. Like with their other challenge to
    the stipend amounts, Petitioners have made the predicate
    showing necessary for Watt to apply. The VA’s current stipend
    calculation system is different from its former system.
    But the VA provided a reasoned, reasonable explanation
    for why it adopted that change. See supra § II(B)(2) (discussing
    how Watt and subsequent Supreme Court cases allow
    the VA to change its policy decisions). And it accounted
    for settled expectations, providing an adjustment period.
    See 38 C.F.R. § 71.40(c)(4). In such circumstances, the VA’s
    decision to change its stipend calculation formula does not
    render the VA’s exercise of its regulatory authority unreasonable.
    All told, the VA made a reasonable policy choice. It
    promulgated the two-tiered stipend framework in an effort
    to ease administration of benefits. And though that framework
    conflicts with the VA’s prior framework, it is still entitled
    to Chevron deference. Applying that deference, we
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    VETERAN WARRIORS, INC. v.
    SECRETARY OF VETERANS AFFAIRS
    54
    conclude the VA reasonably filled a statutory gap. Accordingly,
    we are obligated to adopt the VA’s interpretation.
    We therefore deny the petition as to this ground.
    CONCLUSION
    For all the foregoing reasons, Petitioners’ petition for
    review of the Final Rule is
    DISMISSED IN PART, GRANTED IN PART, AND
    DENIED IN PART
    COSTS
    No costs.
    Case: 21-1378 Document: 56 Page: 54 Filed: 03/25/2022

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