Winsett v. Shinseki , 397 F. App'x 627 ( 2010 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
SHELIA WINSETT,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS
Respondent-Appellee.
__________________________
2010-7082
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-210, Judge Alan G. Lance,
Sr.
___________________________
Decided: October 8, 2010
___________________________
SHELIA WINSETT of Parrish, Alabama, pro se.
AMANDA L. TANTUM, Trial Attorney, Commercial Liti-
gation 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 MARTIN
F. HOCKEY, Assistant Director. Of counsel on the brief
WINSETT v. DVA 2
were DAVID J. BARRANS, Deputy Assistant General Coun-
sel, and DANA RAFFAELLI, Attorney, Office of the General
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before RADER, Chief Judge, DYK, and PROST, Circuit
Judges.
PER CURIAM.
Shelia Winsett (“Winsett”) appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming two December 21, 2007,
decisions of the Board of Veterans Appeals (“the Board”).
See Winsett v. Shinseki, No. 08-0210, 2010 WL 276193(Vet. App. Jan. 26, 2010). We dismiss-in-part and affirm-
in-part.
BACKGROUND
Winsett’s appeal involves two separate claims. The
first is a claim for accrued benefits on behalf of her child
with ex-husband Gary Jacks (“Jacks”), a deceased vet-
eran. She argues that her child was entitled to benefits
because of Jacks’ alleged service connection for post-
traumatic stress disorder (“PTSD”). In October 1983,
Jacks filed a claim for service connection due to PTSD but
died in 1989 while his claim remained pending. In 1989,
Winsett filed her accrued benefits claim on behalf of her
child. The Board rejected the claim, and the Veterans
Court affirmed because there was no diagnosis or evi-
dence of PTSD at the time of Jacks’ death.
The second is a claim seeking recognition as Jacks’
surviving spouse for Veterans Administration (“VA”)
purposes. Winsett and Jacks married in 1969 and were
divorced in 1977. Winsett remarried but divorced her
3 WINSETT v. DVA
second husband in 1983. Subsequently, Winsett would
sometimes stay with Jacks between 1983 and his death in
1989, but the Board found that Winsett and Jacks, who
did not formally remarry, did not have an agreement to be
married, and did not cohabitate during this period.
Hence, they were not common law husband and wife
under Alabama law when Jacks died.
Winsett appealed the Board decisions on these two
claims to the Veterans Court, which affirmed. On April
27, 2010, Winsett timely appealed to this court, and we
have jurisdiction under 38 U.S.C. § 7292.
DISCUSSION
This court’s review of Veterans Court decisions is lim-
ited. We have jurisdiction to review a Veterans Court
decision “on a rule of law or of any statute or regulation . .
. or any interpretation thereof.” 38 U.S.C. § 7292(a).
However, absent a constitutional issue, we lack jurisdic-
tion to review factual determinations or the application of
a law or a regulation to the facts of a particular case. Id.§ 7292(d)(2). To the extent we have jurisdiction, we set
aside Veterans Court interpretations only when they are:
“(A) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; (B) contrary to consti-
tutional right, power, privilege, or immunity; (C) in excess
of statutory jurisdiction, authority, or limitations, or in
violation of a statutory right; or (D) without observance of
procedure required by law.” Id. § 7292(d)(1).
A. Accrued Benefits Claim
Winsett asserts that the VA erred in denying her ac-
crued benefits claim. She contends that, if the VA had
fulfilled its duty to assist under the Veterans’ Claims
Assistance Act (“VCAA”), Jacks would have been diag-
nosed with PTSD during his lifetime. An accrued benefits
WINSETT v. DVA 4
claim based on a veteran’s claim pending at the time of
the veteran’s death must be based on “existing ratings or
decisions or . . . based on evidence in the file at date of
death,” 38 C.F.R. § 3.1000(a), and service connection for
PTSD requires “medical evidence diagnosing the condi-
tion,” 38 C.F.R. § 3.304(f). Therefore, to prove entitlement
for accrued benefits in this case, Winsett had to show
there was evidence in Jacks’ file that could indicate a
PTSD diagnosis. The Veterans Court found there was no
such evidence. The Veterans Court applied the correct
law in affirming the Board’s rejection of her claim.
B. Surviving Spouse Claim
The Board’s determination that Winsett and Jacks did
not have a common law marriage at the time of Jacks’
death involves a question of law applied to facts and is not
within our jurisdiction to review. 38 U.S.C. § 7292(d)(2).
Winsett also argues the Board erred by reopening her
surviving spouse claim. Presumably, she objects now
because she disliked the Board’s determination on the
merits. However, there was no error in allowing her
claim to be reopened while the case was on appeal.
C. Constitutional Violations
Winsett alleges constitutional violations, including
that the VA violated her due process rights by (1) not
allowing her to be present during (or respond to the report
regarding) a VA field examiner’s interview and (2) not
allowing her to fill out a Form 646 before her Board
appeal. She also alleges the VA violated her First
Amendment rights by “closing a remand from the [B]oard
as a ‘no response.’” App’x to Pet’r’s Br. 9. Although we
have jurisdiction to review constitutional questions, 38
U.S.C. § 7292(c), Winsett fails to raise a valid constitu-
tional claim. Winsett’s First Amendment claim appar-
ently arises from claims not related to this appeal. See
5 WINSETT v. DVA
Resp’t’s app’x 98-100 (showing Winsett raised the com-
plaint that the VA improperly closed a claim as a “no
response” in a separate “spina bifida claim”). Winsett
raised her Form 646 claim in an earlier appeal to the
Federal Circuit, and we could not then “discern any
violation . . . of Winsett’s due process rights.” Winsett v.
Peake, 283 F. App’x 796, 799 (Fed. Cir. 2008). Finally,
Winsett has no valid due process claim surrounding the
2006 field examination report. She admits that she was
allowed to “submit[] a rebuttal” to the Board, see Pet’r’s
app’x 11, and the Board conducted a de novo review of the
entire record, including Winsett’s response. The Board
merely found Winsett’s response “to be less probative
than the field examiner’s report.” Winsett, 2010 WL
276193, at *8.
Finally, Winsett raises a series of additional argu-
ments, including that the Veterans Court improperly
failed to give “the benefit of the doubt” under 38 U.S.C. §
5107(b), refused to apply an Alabama case to support her
claim, failed to follow its own internal regulations, and
incorrectly docketed her Petition for a Writ of Mandamus
as a motion to obtain documents. These contentions are
without merit.
DISMISSED-IN-PART and AFFIRMED-IN-PART
COSTS
No costs.