Lowgren v. Nicholson , 157 F. App'x 281 ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-7169
HELMA W. LOWGREN,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________ _
DECIDED: December 7, 2005
________________________
Before MICHEL, Chief Judge, CLEVENGER, and SCHALL, Circuit Judges.
PER CURIAM.
DECISION
Helma W. Lowgren appeals from the final decision of the United States Court of
Appeals for Veterans Claims (“Veterans Court”) that affirmed the decision of the Board
of Veterans Appeals (“Board”) denying Mrs. Lowgren’s claim for accrued benefits.
Lowgren v. Nicholson, No. 02-2289, slip op. (Vet. App. Mar. 17, 2005) (“Final
Decision”). Because we understand Mrs. Lowgren to be challenging only the Veterans
Court’s factual determinations or the court’s application of law to the facts of her case,
we lack jurisdiction. We therefore dismiss her appeal.
DISCUSSION
I.
At the time pertinent to this case, accrued benefits were defined by statute as
“periodic monetary benefits to which an individual was entitled at death under existing
ratings or decisions, or those based on evidence in the file at the date of death . . . and
due and unpaid for a period not to exceed two years.” 38 U.S.C. § 5121(a) (1999). For
a surviving spouse to be entitled to accrued benefits, “the veteran must have had a
claim pending at the time of his death for such benefits or else be entitled to them under
an existing rating or decision.” Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998).
Mrs. Lowgren is the widow of Carl B. Lowgren, a veteran. Mr. Lowgren died on
December 10, 1999. At the time of his death, Mr. Lowgren was receiving military
retirement pay. However, he was not receiving any benefits administered by the
Veterans Administration (“VA”). That is because Mr. Lowgren never waived all or part
of his retirement pay during his lifetime in order to receive VA compensation. At the
time of Mr. Lowgren’s death, the VA was barred by statute from compensating veterans
who received military retirement pay unless they filed a waiver of a portion or all of their
retirement pay. See 38 U.S.C. § 5304 (1999); 38 C.F.R. § 3.750 (1999). When he
died, Mr. Lowgren did not have a pending claim for VA benefits.
Following her husband’s death, Mrs. Lowgren submitted a claim to the VA’s
Virginia Regional Office (“RO”). In her claim, Mrs. Lowgren sought accrued VA benefits
that she asserted Mr. Lowgren was entitled to at the time of his death. In a May 2000
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letter, the RO informed Mrs. Lowgren that she was not entitled to accrued benefits
because Mr. Lowgren was not receiving any VA benefits when he died. The Statement
of the Case that Mrs. Lowgren received in response to her subsequent Notice of
Disagreement with the RO’s decision explained that “[t]here were no payments due to
Mr. Lowgren and unpaid at the time of [his] death because he did not execute an
election during his lifetime” with respect to such benefits. Thereafter, in a September
12, 2002 decision, the Board denied Mrs. Lowgren’s claim. The Board stated that
because her husband had not elected to receive them, “there were no VA benefits due
and payable at the time of [Mr. Lowgren’s] death, and, thus, there are no accrued
benefits payable to [Mrs. Lowgren] now.” Lowgren v. Nicholson, No. XC4824472, slip
op. at 7 (Bd. of Vet. Affairs Sept. 12, 2002).
Mrs. Lowgren appealed the denial of her claim to the Veterans Court. In the
Final Decision, the Veterans Court affirmed the decision of the Board, stating:
In this case, neither party disputes that Mr. Lowgren never
executed a waiver of any portion of his [military retirement
pay], and, there is likewise no indication in the record on
appeal that such a waiver was executed during Mr.
Lowgren’s life. Absent such a waiver, there are no
payments to which Mr. Lowgren would have been entitled,
and, therefore, as a matter of law, Mrs. Lowgren is not
entitled to any accrued benefits.
Final Decision, slip op. at 3 (citations omitted). After the Veterans Court affirmed the
decision of the Board, Mrs. Lowgren appealed to this court.
II.
We have jurisdiction to review a decision of the Veterans Court to determine if its
interpretation of a statute or regulation or its conclusion as to the validity thereof was 1)
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2)
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contrary to constitutional right, power, privilege, or immunity; 3) outside the Veterans
Court’s jurisdiction or a violation of statutory right; or 4) not in accordance with the
required procedure. Maxson v. Gober, 230 F.3d 1330, 1332 (Fed. Cir. 2000). We do
not have jurisdiction to review a decision of the Veterans Court as to 1) a challenge to a
factual determination; or 2) a challenge to a law or regulation as applied to the facts of a
specific case. Id.; 38 U.S.C. § 7292(d)(2) (1999).
Mrs. Lowgren does not argue that the Veterans Court misinterpreted any statute
or regulation or that any pertinent VA regulation is invalid. Nor does she raise any
constitutional issues. At the same time, to the extent that she discusses the
circumstances surrounding the denial of her claim for accrued benefits, her appeal must
be viewed as a challenge to either the factual underpinnings of the Veterans Court’s
decision or the court’s application of law to fact. Under these circumstances, Mrs.
Lowgren’s appeal is beyond the scope of our jurisdiction. See Helfer v. West, 174 F.3d
1332, 1335-36 (Fed. Cir. 1999).1
For the foregoing reasons, Mrs. Lowgren’s appeal is dismissed for lack of
jurisdiction.
Each party shall bear its own costs.
1
On appeal, Mrs. Lowgren raises a number of issues that are not relevant
to the denial of her claim for accrued benefits. Thus, she refers to such matters as the
extent of her husband’s disabilities, the medical treatment he received from the VA, and
Survivors’ Benefit Plan, Social Security, and Dependency and Indemnity Compensation
benefits, as well as an unappealed 1999 RO rating decision that denied Mr. Lowgren’s
claim for special monthly compensation based upon the need for the regular aid and
attendance of another person. As far as we can tell, none of these matters were raised
before the Board or considered by the Veterans Court. For that reason, even if we did
have jurisdiction in this case, we would not consider them. See Forshey v. Principi, 284
F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (holding that this court generally will not
decide issues not raised below); see also Ballard Med. Prods. v. Wright, 821 F.2d 642,
643 (Fed. Cir. 1987).
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