Case: 22-2053 Document: 32 Page: 1 Filed: 05/04/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GUADALUPE R. DURAN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-2053
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-6966, Judge Coral Wong Pi-
etsch.
______________________
Decided: May 4, 2023
______________________
GUADALUPE R. DURAN, Agoo, La Union, Phillippines,
pro se.
DANIEL F. ROLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY.
______________________
Case: 22-2053 Document: 32 Page: 2 Filed: 05/04/2023
2 DURAN v. MCDONOUGH
Before LOURIE, DYK, and STOLL, Circuit Judges.
PER CURIAM.
Guadalupe R. Duran appeals from the decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) affirming a Board of Veterans’ Appeals
(“the Board”) decision that denied Duran’s claim for an ef-
fective date earlier than March 1, 1987 for survivor’s pen-
sion benefits. Duran v. McDonough, No. 18-6966,
2021 WL
4472536 (Vet. App. Sept. 30, 2021) (“Decision”). For the
reasons detailed below, we dismiss Duran’s appeal for lack
of jurisdiction.
BACKGROUND
Duran’s husband served in the U.S. Army, although
the parties disagree as to his period of service. Duran al-
leges that her husband served from 1917–1950, a period of
33 continuous years spanning both world wars. The Secre-
tary only notes that Duran’s husband served from July
1946–November 1947. Duran also alleges that her hus-
band served in an artillery unit, and that he was a prisoner
of war at Camp O’Donnell during a period of his service,
causing adverse effects to his respiratory and cardiovascu-
lar systems. Duran’s husband passed away on March 19,
1985.
Within a month of her husband’s death, Duran filed an
application at the Department of Veterans Affairs (“the
VA”) for dependency and indemnity compensation (“DIC”)
or, in the alternative, survivor’s pension benefits. That in-
itial application was denied by the Manila regional office
(“RO”) in January 1986 because Duran’s annual income ex-
ceeded the limit allowed by law for pension benefits. Duran
did not appeal that decision.
In February 1987, Duran filed another application for
survivor’s pension benefits, which the RO granted in
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DURAN v. MCDONOUGH 3
September of the same year with an effective date of March
1, 1987. Duran also did not appeal that decision.
In October 2012, Duran submitted a claim that the RO
interpreted as (1) seeking aid and attendance or house-
bound benefits, (2) arguing for an earlier effective date for
the grant of survivor’s pension benefits, and (3) claiming
that the RO had committed clear and unmistakable error
(“CUE”) in its January 1986 and September 1987 decisions.
In a May 2013 decision, the RO denied Duran’s requested
relief. Duran then filed a timely Notice of Disagreement,
indicating that she never intended to file a claim for spe-
cialized aid and attendance or housebound benefits, but
was only attempting to claim an earlier effective date and
increased payment rate for survivor’s pension benefits. In
a January 2014 Statement of the Case, the RO denied Du-
ran’s claim for entitlement to an earlier effective date with
respect to survivor’s pension benefits, but did not address
the issue of an increased payment rate. Duran appealed
her claims to the Board in February 2014.
In August 2018, the Board dismissed Duran’s appeal
on the issue of an earlier effective date for survivor’s pen-
sion benefits and remanded the issue of an increased pay-
ment rate. Suppl. App. 14. The Board determined that the
RO’s September 1987 decision establishing an effective
date of March 1, 1987 was final and thus could only be re-
vised if it contained CUE. Id. at 12. The Board acknowl-
edged that Duran referenced CUE but held that those
references did not provide the requisite level of specificity
to have formed a proper CUE motion with respect to an
earlier effective date. Id. at 13. Accordingly, the Board
dismissed the issue of entitlement to an earlier effective
date for survivor’s pension benefits and invited Duran to
properly raise a CUE motion on the issue to the RO. Id. at
13–14. With respect to the issue of an increased payment
rate for Duran’s survivor’s pension benefits, the Board
found that the issue was not discussed in the January 2014
Statement of the Case and remanded the issue to the RO
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4 DURAN v. MCDONOUGH
for the issuance of a new Statement of the Case. Id. at 14.
The Board also noted that Duran referenced DIC benefits,
as well as benefits not administered by the VA and held
that it did not have jurisdiction over those issues until they
had been adjudicated by the RO or appropriate agency. Id.
at 10–11. Duran appealed the Board’s decision to the Vet-
erans Court.
In September 2021, the Veterans Court affirmed the
Board’s August 2018 decision. Decision at *5. The court
held that the Board was correct in barring Duran’s claim
to an earlier effective date as a matter of law because the
RO’s September 1987 decision was final, and that Duran
had not properly moved to revise that decision for CUE. Id.
at *4. The court also held that Duran’s appeal contained
no arguments concerning why the Board’s decision on that
issue was incorrect, and that other issues raised in the ap-
peal were not within the Veterans Court’s jurisdiction as
they were not decided by the Board in the underlying deci-
sion due to the lack of any previous adjudication by an RO.
Id. Even though Duran raised an issue concerning the Sec-
retary’s delayed production of her husband’s service treat-
ment medical records during the Board proceedings, the
court found that she had not adequately explained how
that had negatively impacted her claim to an earlier effec-
tive date or to other forms of benefits. Id. Duran then filed
a motion for reconsideration, which was denied by the court
for failing to demonstrate that the court’s decision over-
looked or misunderstood any point of fact or law.
Duran then filed the present notice of appeal to this
court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review the validity of a decision
with respect to a rule of law or interpretation of a statute
or regulation that was relied upon by the Veterans Court
in making its decision.
38 U.S.C. § 7292(a). However,
Case: 22-2053 Document: 32 Page: 5 Filed: 05/04/2023
DURAN v. MCDONOUGH 5
except with respect to constitutional issues, we may not re-
view challenges to factual determinations or challenges to
the application of a law or regulation to the facts of a case.
38 U.S.C. § 7292(d)(2).
In reviewing a Veterans Court decision, we decide “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions,” and set aside any inter-
pretation thereof “other than a determination as to a
factual matter” relied upon by the Veterans Court that we
conclude is “(A) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (B) contrary
to constitutional right, power, privilege, or immunity; (C)
in excess of statutory jurisdiction, authority, limitations, or
in violation of a statutory right; or (D) without observance
of procedure required by law.”
38 U.S.C. § 7292(d). We re-
view questions of statutory and regulatory interpretation
de novo. Andre v. Principi,
301 F.3d 1354, 1358 (Fed. Cir.
2002) (citing Maggitt v. West,
202 F.3d 1370, 1374 (Fed.
Cir. 2000)).
Duran contends that the Veterans Court’s decision up-
holding the Board’s denial of an earlier effective date for
survivor’s pension benefits contains both legal and factual
errors. She points out that her husband served for a much
longer period than noted by the Board and Veterans Court,
and that he was a prisoner of war during a period of his
service. Additionally, Duran alleges that she never re-
ceived the Veterans Court’s denial of her motion for recon-
sideration and maintains that the Secretary’s inability to
produce her husband’s service medical records deprives her
of additional benefits including DIC benefits, National Ser-
vice Life Insurance (“NLSI”) benefits, Social Security
widow’s pension benefits, and Concurrent Retirement and
Disability Payments. Thus, Duran argues that the Veter-
ans Court decision unlawfully deprives her of rights in vio-
lation of
38 U.S.C. § 1318 and
5 U.S.C. § 2302(b)(1).
Furthermore, Duran argues that the Veterans Court
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6 DURAN v. MCDONOUGH
decision violates the due process provision of the Fifth
Amendment of the U.S. Constitution.
With respect to Duran’s claims for an earlier effective
date for survivor’s pension benefits, the Secretary responds
that we lack jurisdiction to hear this appeal because the
Veterans Court did not interpret any statute or regulation,
but instead applied established law to the facts at hand. As
for Duran’s arguments concerning other benefits, including
DIC and NLSI benefits, the Secretary claims that Duran is
asking us to consider questions not presented to the Board
or the Veterans Court in the first instance. In response to
Duran’s claim of a constitutional due process violation, the
Secretary asserts that Duran’s argument is nothing more
than a bare assertion of constitutional wrongdoing, and
that forcing Duran to abide by the statutory scheme in
seeking an earlier effective date does not deprive her of a
right to be heard.
We agree with the Secretary that the Veterans Court
did not opine on the meaning of any statute, regulation, or
otherwise make a legal interpretation. It instead applied
established law in reviewing the Board’s denial of Duran’s
claim as to an earlier effective date for survivor’s pension
benefits, as well as the Board’s denial of an increased pay-
ment rate. Even though Duran facially contends that the
Veterans Court decision involved the validity or interpre-
tation of a statute or regulation, her underlying arguments
involve factual issues including her late husband’s period
of service in the U.S. Army and his status as a prisoner of
war during a portion of his service. Duran Br. at 1–2. Du-
ran raises those factual issues without adequately explain-
ing how they relate to any Veterans Court determination
concerning the validity or interpretation of a law.
Furthermore, Duran’s arguments on appeal do not con-
test the determinations underlying the Board’s and Veter-
ans Court’s denial of an earlier effective date, namely the
finality of the September 1987 decision and the adequacy
Case: 22-2053 Document: 32 Page: 7 Filed: 05/04/2023
DURAN v. MCDONOUGH 7
of a CUE claim filed at the RO. Even if Duran were to dis-
pute the cogency of a previous CUE claim, we “lack juris-
diction to consider whether [the appellant] raised a valid
CUE claim” unless there is a legal issue presented. Kernea
v. Shinseki,
724 F.3d 1374, 1382 (Fed. Cir. 2013). Moreo-
ver, Duran’s contentions relating to an increased payment
rate and additional forms of benefits must first have been
addressed in turn by the RO, the Board, and the Veterans
Court before we review them on appeal, see Garza v.
Shinseki,
480 F. App’x 984, 987 (Fed. Cir. 2012);
38 U.S.C.
§ 7292(a), and any challenge as to whether they were raised
absent any legal issue is a factual inquiry over which we
lack jurisdiction.
Likewise, Duran’s procedural contentions involving the
service of the Veterans Court’s denial of her motion for re-
consideration and the Secretary’s production of her hus-
band’s service medical records to the Board do not involve
the validity or interpretation of a statute or regulation by
the Veterans Court, although those issues may bear on the
merits of yet-to-be-adjudicated claims.
With respect to Duran’s claims of a Fifth Amendment
due process violation, she has not provided an adequate ba-
sis to support her contentions. Duran only facially asserts
a constitutional issue and does not elaborate how the Vet-
erans Court’s decision violated her rights. Thus, we do not
have jurisdiction to consider those arguments. Randolph
v. McDonald,
576 F. App’x 973, 975 (Fed. Cir. 2014) (“With-
out an explanation providing an adequate basis for [the ap-
pellant’s] claims, they are constitutional claims in name
only and thus outside of our jurisdiction.” (citing Helfer v.
West,
174 F.3d 1332, 1335 (Fed. Cir. 1999))). In any case,
the Board and Veterans Court have informed Duran that
she may raise her claims again using proper requests to the
RO and other agencies, which will then provide decisions
amenable to judicial review. See Suppl. App. 13–14; Deci-
sion at *4.
Case: 22-2053 Document: 32 Page: 8 Filed: 05/04/2023
8 DURAN v. MCDONOUGH
Duran thus has not raised any issue “with respect to
the validity of a decision of the Court on a rule of law or of
any statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the Court in making the decision.”
38 U.S.C. § 7292(a).
CONCLUSION
We have considered Duran’s remaining arguments, but
we find them unpersuasive. For the foregoing reasons, we
dismiss her appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
