NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANCES W. LAKE,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-2421
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2625, Judge Joseph L. Toth.
______________________
Decided: February 13, 2019
______________________
FRANCES W. LAKE, Vestavia, AL, pro se.
ERIN MURDOCK-PARK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, MARTIN F. HOCKEY, JR., ROBERT EDWARD
KIRSCHMAN, JR.; CHRISTINA LYNN GREGG, BRIAN D.
GRIFFIN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
2 LAKE v. WILKIE
Before NEWMAN, MAYER, and DYK, Circuit Judges.
PER CURIAM.
Frances W. Lake appeals the judgment of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) denying her claim for survivor pension benefits.
See Lake v. O’Rourke, No. 17-2625,
2018 U.S. App. Vet.
Claims LEXIS 861 (June 29, 2018) (“Veterans Court Deci-
sion”). We dismiss for lack of jurisdiction.
BACKGROUND
Mrs. Lake is the surviving spouse of Melvin E. Lake, a
veteran who had active duty service from June 1948 to July
1953. The Department of Veterans Affairs (“VA”) deter-
mined that Mrs. Lake met preliminary eligibility require-
ments for survivor pension benefits. See Supplemental
Appendix (“S.A.”) 9–10. It further concluded that she was
in need of regular “aid and attendance,” see
38 C.F.R.
§ 3.352, because the “[m]edical evidence show[ed]” that she
was “unable to bathe, eat, [or] walk in and out of [her] home
without assistance.” S.A. 10.
On November 12, 2010, however, the Montgomery, Al-
abama VA Regional Office (“Regional Office”) denied Mrs.
Lake’s claim for survivor pension benefits, including aid
and attendance. S.A. 11–14. It determined that Mrs. Lake
was not entitled to receive these benefits because her in-
come exceeded the Maximum Annual Pension Rate
(“MAPR”), see
38 U.S.C. § 1541(d), for surviving spouses in
need of regular aid and attendance. Mrs. Lake then ap-
pealed to the Board of Veterans’ Appeals (“board”), which
remanded her case to the Regional Office for further devel-
opment. S.A. 15–20. According to the board, “additional
development [was] necessary to provide notice to [Mrs.
Lake] of the evidence necessary to substantiate her asser-
tions as to the incurrence of unreimbursed medical ex-
penses, and to assist her in obtaining such evidence.” S.A.
16.
LAKE v. WILKIE 3
On remand, the Regional Office sent Mrs. Lake an ex-
pense form, explaining that she needed to provide addi-
tional information regarding her claimed unreimbursed
medical expenses. S.A. 26. After receiving some additional
documentation from Mrs. Lake regarding her expenses,
however, the Regional Office again denied her claim for
survivor pension benefit payments. S.A. 26–27. On ap-
peal, the board affirmed, stating that Mrs. Lake had failed
to provide sufficient documentation of her claimed unreim-
bursed medical expenses. S.A. 26. It further stated that
even if Mrs. Lake’s claimed medical expenses had been
properly documented, her “countable” income would still be
in excess of the MAPR threshold “by substantial amounts.”
S.A. 28. The board noted that the Regional Office had de-
termined that even if Mrs. Lake’s claimed payments to an
in-home assistant were deducted from her annual income,
her income would still exceed the MAPR limit by a signifi-
cant margin. S.A. 27.
Mrs. Lake then appealed to the Veterans Court, argu-
ing that the board “did not have a complete picture of her
expenses.” Veterans Court Decision,
2018 U.S. App. Vet.
Claims LEXIS 861, at *5. In support, she attached docu-
mentation related to the expenses she had incurred at
Town Village, an assisted living facility, where she has re-
sided since September 2017.
Id.
In June 2018, the Veterans Court affirmed the board’s
determination that Mrs. Lake’s income level barred the
payment of survivor pension benefits. Although the court
acknowledged that Mrs. Lake had submitted documenta-
tion with her appeal related to her expenses at Town Vil-
lage, it stated that it could not review evidence that had
not been presented to the board.
Id. at *17–18. After Mrs.
Lake’s motion for reconsideration was denied, she filed a
timely appeal with this court.
4 LAKE v. WILKIE
DISCUSSION
This court’s authority to review decisions of the Veter-
ans Court is limited by statute. See
38 U.S.C. § 7292; Bur-
ris v. Wilkie,
888 F.3d 1352, 1356 (Fed. Cir. 2018). We have
jurisdiction to “decide all relevant questions of law, includ-
ing interpreting constitutional and statutory provisions.”
38 U.S.C. § 7292(d)(1); see also Halpern v. Principi,
384
F.3d 1297, 1300 (Fed. Cir. 2004). Absent a constitutional
issue, however, we “may not review (A) a challenge to a fac-
tual determination, or (B) a challenge to a law or regulation
as applied to the facts of a particular case.” 38 U.S.C
§ 7292(d)(2).
The surviving spouse of a veteran who had at least
ninety days of service during a period of war is, under cer-
tain circumstances, entitled to survivor pension benefits.
See id. §§ 1521(j), 1541. To receive such benefits, however,
the surviving spouse cannot have an annual income in ex-
cess of the MAPR specified in
38 U.S.C. § 1541(d). See
38
C.F.R. § 3.23. A higher MAPR applies when, like Mrs.
Lake, a surviving spouse is in need of regular “aid and at-
tendance.”
38 U.S.C. § 1541(d). Unreimbursed medical ex-
penses, including, in some situations, amounts paid to a
nursing home or extended care facility, may be deducted
from countable annual income when determining eligibil-
ity for survivor pension benefits. See
38 C.F.R. §§ 3.272,
3.278.
On appeal, Mrs. Lake argues that her annual income,
after deducting eligible expenses, is below the applicable
MAPR threshold and that she is therefore entitled to sur-
vivor pension benefit payments. Specifically, she asserts
that if the $28,740 in payments she makes each year to
Town Village are deducted from her annual gross income
of approximately $43,000, her countable annual income
will be below the applicable MAPR limit. In support, Mrs.
Lake has submitted documentation indicating that her
monthly rent at Town Village is $2395.
LAKE v. WILKIE 5
We are not unsympathetic to Mrs. Lake’s claim that
she has incurred deductible expenses that are sufficient to
bring her annual income below the applicable MAPR limit.
This court, however, has no jurisdiction to make factual de-
terminations regarding eligibility for veterans’ benefits.
See Bastien v. Shinseki,
599 F.3d 1301, 1306 (Fed. Cir.
2010) (“The evaluation and weighing of evidence [related
to entitlement to veterans’ benefits] and the drawing of ap-
propriate inferences from it are factual determinations
committed to the discretion of the fact-finder. We lack ju-
risdiction to review these determinations.”). We therefore
cannot conduct the initial evaluation of the documentation
submitted by Mrs. Lake to determine whether her ex-
penses at Town Village can be deducted from her annual
income for purposes of determining her eligibility for sur-
vivor pension benefits.
Instead, Mrs. Lake should provide the Regional Office
with documentation substantiating the expenses she has
incurred at Town Village. She should also provide the Re-
gional Office with documentation showing the Medicare
premiums she has paid, as well as receipts for any medical
expenses that have not been reimbursed by insurance. See
38 C.F.R. § 3.278.
In this regard, when the Regional Office initially de-
nied Mrs. Lake’s claim in 2010, it informed her that she
had the right to reapply for survivor pension benefits if her
income decreased or her eligible deductible expenses in-
creased. S.A. 12. Once Mrs. Lake supplies the Regional
Office with the necessary documentation, it should expedi-
tiously determine whether her countable annual income is
below the maximum annual limit, see
38 U.S.C. § 1541(d),
for receipt of survivor pension benefits.
CONCLUSION
Accordingly, Mrs. Lake’s appeal of the judgment of the
United States Court of Appeals for Veterans Claims is dis-
missed for lack of jurisdiction.
6 LAKE v. WILKIE
DISMISSED
