Pimentel v. Dept. Of Veterans Affairs ( 2011 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
PEPITA PIMENTEL,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7074
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-2890, Judge John J.
Farley, III.
__________________________
Decided: June 10, 2011
__________________________
Pepita Pimentel, Zambales, Philippines, pro se
CORINNE A. NIOSI, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and STEVEN
J. GILLINGHAM, Assistant Director. Of counsel on the
2 PIMENTEL v. DVA
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
eral Counsel, and KRISTIANA M. BRUGGER, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before RADER, Chief Judge, LINN and PROST, Circuit
Judges.
PER CURIAM.
Pepita Pimentel (“Pimentel”) appeals from a final de-
cision of the United States Court of Appeals for Veterans
Claims (“Veterans Court”), affirming the decision of the
Board of Veterans’ Appeals (“Board”), which denied her
claim for entitlement to dependency and indemnity com-
pensation (“DIC”) benefits pursuant to 38 U.S.C. § 1318.
Pimentel v. Shinseki, No. 09-2890 (Vet. App. Dec. 1, 2010).
For the reasons discussed below, this court affirms.
BACKGROUND
Pimentel’s now-deceased husband served on active
duty in the U.S. Navy from March 1946 to April 1954. He
applied for service-connected disability benefits for
schizophrenia and avitaminosis in 1976. These claims
were still pending at the time of his death in 1979.
In March 1999, Pimentel filed an application for DIC
benefits with the Department of Veterans Affairs (the
“Department”). DIC is a monthly benefit paid to surviv-
ing spouses of veterans when a veteran’s service-
connected disability was a principal or a contributory
cause of the veteran’s death. 38 U.S.C. §§ 1310, 1311; 38
C.F.R. § 3.312(a). Alternatively, if a veteran’s death is not
service-connected, a surviving spouse may still receive
DIC benefits if the veteran had received, or was entitled
to receive, compensation at the time of his death for a
service-connected disability in certain situations. 38
PIMENTEL v. DVA 3
U.S.C. § 1318. Pimentel claimed that her husband was
hypothetically entitled to service-connected disability
benefits at the time of his death and therefore she was
entitled to DIC benefits under 38 U.S.C. § 1318.
In order to establish that her husband was hypotheti-
cally entitled to service-connected disability benefits,
Pimentel sought to obtain certain of her husband’s medi-
cal records from the U.S. Naval Hospital at Yokosuka,
Japan. After multiple attempts to locate these medical
records, the Department responded that, after an exhaus-
tive search, it could not locate these records and that the
Naval Hospital only kept records dating back to 1980,
whereas her husband’s records would have been from
1953.
On July 8, 2009, the Board denied Pimentel’s claim
for DIC benefits, finding that a “hypothetical entitlement”
claim under 38 U.S.C. § 1318 was precluded as a matter
of law. The Board similarly found that the Department
had satisfied its duty to assist by performing an exhaus-
tive search until it was informed that the requested
records did not exist. Pimentel appealed to the Veterans
Court, which affirmed the Board in an opinion dated
December 1, 2010. Pimentel timely appealed to this
court.
DISCUSSION
This court’s authority to review decisions of the Vet-
erans Court is extremely limited. Under 38 U.S.C.
§ 7292(a), this court has jurisdiction over rules of law or
the validity of any statute or regulation, or an interpreta-
tion thereof relied on by the Veterans Court in its deci-
sion. In appeals from the Veterans Court not presenting
a constitutional question, this court “may not review (A) a
challenge to a factual determination, or (B) a challenge to
a law or regulation as applied to the facts of a particular
4 PIMENTEL v. DVA
case.” 38 U.S.C. § 7292(d)(2). In other words, this court
lacks authority to review challenges to the Board’s factual
determinations. See, e.g., Johnson v. Derwinski, 949 F.2d
394, 395 (Fed. Cir. 1991).
Pimentel argues that her husband should have been
found to be entitled to service-connected benefits at the
time of his death. Pimentel also contends that the De-
partment failed to comply with its duty to assist by not
obtaining certain medical records of her husband. Pimen-
tel further argues that the Veterans Court “failed to
consider the value of material evidence[] submitted.”
Appellant’s Br. at 1. The government responds that the
Veterans Court properly determined that the Department
had satisfied its duty to assist and had no further duty
once it learned that the requested medical records of her
husband no longer existed. According to the government,
whether the Department had a responsibility to procure
certain records and whether the Department discharged
its duty to assist, involve the application of law to fact and
are thus beyond this court’s jurisdiction. Finally, the
government responds that Pimentel’s challenge to the
fact-finder’s weighing of the evidence is similarly outside
of this court’s jurisdiction.
This court agrees with the government. Whether the
Department satisfied its duty to assist is a factual matter
outside this court’s jurisdiction. Hayre v. West, 188 F.3d
1327, 1332 (Fed. Cir. 1999), overruled on other grounds,
Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002); Glover v.
West, 185 F.3d 1328, 1333 (Fed. Cir. 1999). Similarly,
Pimentel’s argument that the Veterans Court improperly
considered the value of the submitted evidence is really a
challenge to the weighing of evidence in her case, a fac-
tual matter entirely outside this court’s jurisdiction.
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
PIMENTEL v. DVA 5
Pimentel also argues that she is entitled to DIC bene-
fits under a “hypothetical entitlement claim.” In other
words, Pimentel argues that she is entitled to DIC bene-
fits because her husband should have been entitled to
service-connected disability benefits before his death,
even though he was not actually receiving them. The
government responds that this court has held that “hypo-
thetical entitlement” cannot be the basis for a DIC claim
as a matter of law. See Rodriguez v. Peake, 511 F.3d
1147, 1154 (Fed. Cir. 2008).
This court again agrees with the government. Pimen-
tel filed her DIC claim in March of 1999. In January
2000, the Secretary of Veterans Affairs (“Secretary”)
amended 38 C.F.R. § 3.22 to preclude reading a “hypo-
thetical entitlement” approach, such as the one advanced
by Pimentel, into 38 U.S.C. § 1318. See Rodriguez, 511
F.3d at 1150. Even though Pimentel filed her claim prior
to the Secretary’s amendment of § 3.22, this court has
previously held that “38 C.F.R. § 3.22, as amended by the
Secretary in 2000, . . . may be applied to claims for DIC
benefits filed by survivors before the amendment took
effect.” Rodriguez, 511 F.3d at 1154, 1156 (finding that
“the amendment to § 3.22 did no more than interpret the
requirements of [38 U.S.C.] § 1318 and clarify the
agency’s earlier interpretation of that statute.” (internal
quotation and citation omitted)); see also Tarver v. Shin-
seki, 557 F.3d 1371, 1377 (Fed. Cir. 2009) (rejecting
“hypothetical entitlement” approach where DIC claim was
filed in June of 1999, before the 2000 amendment). Thus,
Pimentel’s “hypothetical entitlement” DIC claim fails as a
matter of law. See Tarver, 557 F.3d at 1377; Rodriguez,
511 F.3d 1156.
For the foregoing reasons, the decision of the Veterans
Court is affirmed.
AFFIRMED
6 PIMENTEL v. DVA
COSTS
Each party shall bear its own costs.