Case Information
*2 Before T ARANTO , C HEN , and H UGHES , Circuit Judges .
T ARANTO , Circuit Judge .
Rebecca M. Pereida’s biological father was a Vietnam veteran; her biological mother is not. In 2019, Ms. Pereida, citing her father’s status as a Vietnam veteran, applied to the U.S. Department of Veterans Affairs (VA) for benefits based on alleged disabilities of her own, made available by law to certain children of Vietnam veterans. VA’s relevant regional office denied the claim, and the Board of Veterans’ Appeals affirmed the denial. Secretary Supplemental Ap- pendix (S. Appx.) 12–16. Upon Ms. Pereida’s appeal of the Board’s decision, the Court of Appeals for Veterans Claims (Veterans Court) also affirmed, determining in relevant part that Ms. Pereida was not entitled to benefits based on birth defects under 38 U.S.C. §§ 1811–1816—specifically, under § 1815—because those provisions expressly apply only to an “eligible child,” defined as a child of “a woman Vietnam veteran,” § 1811(1)(A). S. Appx. 1–6 ( Decision ); S. Appx. 7. In so holding, the Veterans Court acknowl- edged that Ms. Pereida asserted that the provisions imper- missibly discriminate on the basis of sex, but it affirmed the Board’s denial of the benefits claim simply because “the law is clear as to which claimants are entitled to benefits” under the statute. Decision , at 6.
Ms. Pereida appeals, raising the discrimination issue expressly as a constitutional challenge to the statutory sex- based limit. The government does not deny the evident fact that Ms. Pereida’s sex-discrimination challenge in the Vet- erans Court was a constitutional challenge. But the Veter- ans Court provided no explanation for its rejection of the constitutional challenge, whether forfeiture or lack of Vet- erans Court authority or insufficient development or lack of merit or any other reason. We vacate and remand for the Veterans Court to address the issue. *3 3
I
Ms. Pereida’s father, now-deceased Jose J. Pereida, served on active duty in the U.S. Marine Corps from Au- gust 1958 to August 1962 and from September 1962 to Au- gust 1968, with service in Vietnam. S. Appx. 4; S. Appx. 13. Ms. Pereida’s mother, Mary Pereida, did not serve in the military in Vietnam. S. Appx. 50; S. Appx. 68. In Oc- tober 2019, Ms. Pereida filed an application for benefits as a child with disabilities born of a Vietnam veteran (her fa- ther), listing the conditions of spinocerebellar ataxia, dys- tonia, migraine headaches, fibromyalgia, type II diabetes mellitus, panic disorder with agoraphobia, degenerative joint disease of the lower back, and spinonsitia. S. Appx. 68–69.
On March 31, 2020, a VA regional office denied the claim, determining that Ms. Pereida did not qualify for benefits under either of the two relevant statutory bases for benefits for a child with disabilities born of a Vietnam veteran: (1) Ms. Pereida was not entitled to benefits for a child born with spina bifida to a Vietnam-veteran parent (mother or father) under 38 U.S.C. § 1805, because the rec- ord did not show that she had such a diagnosis; and (2) Ms. Pereida was not entitled to benefits for a child born with certain non-spina-bifida birth defects to a Vietnam-veteran mother under 38 U.S.C. § 1815, because the record did not show that Ms. Pereida’s mother had served in Vietnam. S. Appx. 59–66; see also 38 U.S.C. § 1811 (defining an “eli- gible child” for benefits under § 1815 as an individual who is the child of a “woman Vietnam veteran” and who was born with “one or more covered birth defects” identified in
§ 1812); 38 C.F.R. § 3.814–815.
In April 2020, Ms. Pereida appealed the denial to the Board and requested a hearing. S. Appx. 58. In March 2022, a Veterans Law Judge held the requested hearing, during which Ms. Pereida stated that she had not been di- agnosed with spina bifida and that her mother is not a Vi- etnam veteran, which her mother confirmed. S. Appx. 46, *4 49–50. Accordingly, on July 27, 2022, the Board agreed with the regional office and denied Ms. Pereida’s claim. S. Appx. 12–16.
Ms. Pereida appealed to the Veterans Court, contend- ing that the provision of benefits to the children of female— but not male—Vietnam veterans under 38 U.S.C. §§ 1811– 1816 constitutes discrimination on the basis of sex. S. Appx. 36–45. Ms. Pereida did not challenge the Board’s findings that she had no diagnosis of spina bifida and that her mother is not a Vietnam veteran. S. Appx. 36–45.
On February 29, 2024, the Veterans Court affirmed the decision of the Board. Decision , at 6. It discerned no clear error in the Board’s determinations that Ms. Pereida was not entitled to benefits under 38 U.S.C. §§ 1805 or 1815 be- cause she did not have a diagnosis of spina bifida and her mother is not a Vietnam veteran. Id. at 5–6. The Veterans Court acknowledged that Ms. Pereida “argues that . . . 38 U.S.C. § 1815 is discriminatory because it only considers children of women Vietnam veterans.” Id. at 6 (citing Ms. Pereida’s entire brief, S. Appx. 36–45). Without further discussion, the Veterans Court stated that it was “sympa- thetic” to Ms. Pereida’s situation but “the law is clear as to which claimants are entitled to benefits under sec- tions 1805 and 1815,” and “[a]ccordingly, the Court is left with no choice but to affirm the Board’s denial of benefits.” Id. In the Veterans Court, Ms. Pereida was acting pro se.
Ms. Pereida moved for reconsideration. The Veterans Court rejected the motion and entered judgment on March 22, 2024. S. Appx. 7. Ms. Pereida timely appealed to this court, where she is acting pro se. Our jurisdiction is gov- erned by 38 U.S.C. § 7292.
II
Ms. Pereida presents one argument: that the Veterans Court erred in rejecting her contention that the sex-based distinction in the statute at issue (between father and mother) is unconstitutional. It is clear, and both parties *5 5 before us accept, that the non-spina-bifida statutory bene- fits provision at issue, 38 U.S.C. § 1815, is limited to ex- clude Ms. Pereida because it was her father, not mother, who served in Vietnam. It is clear, and not denied by the government here, that she challenged the statutory dis- tinction before the Veterans Court and the challenge was in fact an argument for unconstitutionality (even if she did not mention the Constitution expressly). It is also clear that the Veterans Court, which acknowledged that her en- tire brief before that court was an argument that the stat- utory distinction impermissibly discriminated on the basis of sex, necessarily rejected the contention as a basis for do- ing anything but affirming the Board’s denial of benefits. Decision , at 6.
This contention is a legal challenge to a statute (and its relevantly identical implementing regulation), and the Vet- erans Court necessarily rejected it as a ground for setting aside the Board’s decision. We therefore have jurisdiction under 38 U.S.C. § 7292 to review the Veterans Court’s de- cision in order to address this contention. See Smith v. Col- lins , 130 F.4th 1337, 1343–44 (Fed. Cir. 2025) (citing cases). This jurisdiction includes authority “to determine whether [the] Veterans Court decision may have rested on an incorrect rule of law.” Martin v. McDonald , 761 F.3d 1366, 1369 (Fed. Cir. 2014) (citing Colantonio v. Shinseki , 606 F.3d 1378 (Fed. Cir. 2010)); see Acree v. O’Rourke , 891 F.3d 1009, 1015 (Fed. Cir. 2018) (same). Where the deci- sion may have rested on a legal error, we may vacate the decision and remand for further proceedings on the issue. See Acree , 891 F.3d at 1015; Colantonio , 606 F.3d at 1382.
Here, the Veterans Court’s decision may well rest on legal error. Because of how little the Veterans Court said about the sex-discrimination challenge, we cannot tell why the Veterans Court rejected the challenge. And we think that it is at least advisable, perhaps even necessary given our limited jurisdiction, for the Veterans Court to under- take in the first instance the further consideration needed *6 for a proper decision of whether the constitutional conten- tion should be rejected and, if so, why.
The government states that Ms. Pereida forfeited her argument by not presenting it to the Board. Secretary In- formal Br. at 9–10 (citing Ledford v. West , 136 F.3d 776, 779 (Fed. Cir. 1998)). But the Veterans Court did not ar- ticulate such a ground, and the cited sentence from Ledford itself indicates that the relied-on doctrine of administrative exhaustion is “not jurisdictional.” 136 F.3d at 780. Whether there is a forfeiture for non-exhaustion and whether, if so, it should be excused are matters for the Vet- erans Court to address. See also Bowling v. McDonough , 38 F.4th 1051, 1058–59 (Fed. Cir. 2022) (discussing practi- cal, case-specific considerations).
The government states that, to the extent that Ms. Pereida made a “facial constitutional challenge to sec- tion 1815 (as distinguished from an as-applied challenge),” the Veterans Court lacked authority under 38 U.S.C. § 7261 to rule on the challenge. Secretary Informal Br. at 10–11 (citing Taylor v. McDonough , 71 F.4th 909, 942 (Fed. Cir. 2023) (en banc) (plurality portion of opinion)); see Tay- lor , 71 F.4th at 942–43. The government did not make such an assertion to the Veterans Court in its brief to that court. See Brief of the Appellee Secretary of Veterans Affairs at 9–10, Pereida v. McDonough , No. 22-6676 (Vet. App. Oct. 2, 2023) (attached to Ms. Pereida’s Reply Brief in this court, ECF No. 47). And the Veterans Court did not discuss the issue now raised by the government or otherwise discuss whether it would lack authority to grant relief based on Ms. Pereida’s challenge if it found the challenge meritorious.
The government states that Ms. Pereida “did not make a fully developed constitutional challenge to section 1815 before the Veterans Court.” Secretary Informal Br. at 10. That is true, but the Veterans Court did not rely on that fact as a ground for its decision. Nor did it decide that a standard of full development should apply to a pro se filer like Ms. Pereida. Compare De Perez v. Derwinski , 2 Vet. *7 7 App. 85, 86 (1992) (noting liberal-construction principle ap- plicable to pro se appellants), with Locklear v. Nicholson , 20 Vet. App. 410, 416 & n.4 (2006) (declining to consider an underdeveloped argument but considering it “of great sig- nificance” that petitioner was “represented by counsel in this case”). The Veterans Court also did not say that such a standard would justify rejection of the challenge without even exploring possibilities ( e.g. , appointment of counsel or an amicus) for fuller development of legal arguments.
The government states that “[i]t is unclear . . . why [the statutes] would not withstand rational basis review.” Sec- retary Informal Br. at 10 (citing Talon v. Brown , 999 F.2d 514, 517 (Fed. Cir. 1993) (discussing United States Rail- road Retirement Board v. Fritz , 449 U.S. 166, 176 (1980))). The Veterans Court did not address what the applicable standard of review would be for Ms. Pereida’s challenge. Specifically, it did not discuss the many authorities apply- ing a heightened standard of review to constitutional chal- lenges to sex-differentiating classifications. See , e.g. , Sessions v. Morales-Santana , 582 U.S. 47, 57–59 (2017); Tuan Anh Nguyen v. Immigration & Naturalization Ser- vice , 533 U.S. 53, 60–61 (2001).
Nor did the Veterans Court conduct an analysis of the challenged statutory classification under any standard. In particular, it did not discuss the background of 38 U.S.C. §§ 1811–1816, which became law through enactment of the Veterans Benefits and Health Care Improvement Act of 2000, Pub. L. No. 106-419, § 401, 114 Stat. 1822, 1857–59 (2000). The Senate Committee on Veterans’ Affairs, in rec- ommending adoption of the measures, relied on the results of a then-recent study that identified “a statistically signif- icant increase in the prevalence of birth defects . . . and se- vere birth defects” in the children of women Vietnam veterans as compared to the children of women who served elsewhere in the Vietnam era. S. Rep. No. 106-397, at 32 (2000) (discussing VA Environmental Epidemiology Ser- vice’s ‘‘Women Vietnam Veterans Reproductive Outcomes Health Study”). That study was undertaken pursuant to a *8 1986 congressional directive. See Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, § 19031, 100 Stat. 82, 385–86 (1986); H.R. Rep. No. 99-337, pt. 1, at 40–41 (1985). A portion of the study, published in the medical literature, states several reasons for focusing on reproductive outcomes for female veterans, including that previous studies failed to identify an association be- tween service in Vietnam by male veterans and most birth defects in their children. Han K. Kang et al., Pregnancy Outcomes Among U.S. Women Vietnam Veterans , 38 A M . J. I NDUS . M ED . 447, 447–48 (2000); see Monetary Allowances for Certain Children of Vietnam Veterans; Identification of Covered Birth Defects, 67 Fed. Reg. 200, 200 (Jan. 2, 2002) (to be codified at 38 C.F.R. pt. 3) (discussing the publication of the VA study). The House Committee, in recommending the bill that ordered that study, observed that female Vi- etnam veterans had not been included in other studies that were already being conducted involving male Vietnam vet- erans. H.R. Rep. No. 99-337, pt. 1, at 40–41. In noting the foregoing aspects of the statutory background, we do not suggest what their ultimate role should be in a proper pre- sent-day analysis of the statutory provision at issue.
For the above reasons, we conclude that the case should be remanded to the Veterans Court for further pro- ceedings—in the Veterans Court or, if necessary, at the Board—on Ms. Pereida’s constitutional challenge.
III
The decision of the Veterans Court is vacated, and the case is remanded to the Veterans Court for further proceed- ings consistent with this opinion.
The parties shall bear their own costs.