Nailos v. Wilkie

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOAN M. NAILOS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1415
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-1065, Judge Coral Wong Pi-
etsch, Judge Amanda L. Meredith, Judge Joseph L. Toth.
______________________
Decided: June 6, 2019
______________________
JOAN M. NAILOS, Amherst, NY, pro se.
KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, CLAUDIA BURKE, ROBERT EDWARD
KIRSCHMAN, JR.; CHRISTOPHER O. ADELOYE, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 NAILOS v. WILKIE
______________________
Before LOURIE, MOORE, and TARANTO, Circuit Judges.
PER CURIAM.
Joan M. Nailos is the surviving spouse of a U.S. Navy
veteran. In May 2002 she filed a claim seeking certain ben-
efits from the Department of Veterans Affairs (VA), but the
VA’s Board of Veterans’ Appeals (Board) denied the claim,
and the denial was affirmed by the United States Court of
Appeals for Veterans Claims (Veterans Court). In Novem-
ber 2009, Ms. Nailos sought to reopen that claim. The
Board granted her the benefits at issue, but it denied her
request for a May 2002 effective date for those benefits, rul-
ing that the benefits would be given an effective date of No-
vember 12, 2009, the date she sought to reopen the 2002
claim. The Veterans Court affirmed the Board’s denial of
the requested May 2002 effective date.
Ms. Nailos appeals, arguing that the original denial of
the May 2002 claim was the result of clear and unmistak-
able error (CUE). But that challenge is outside our limited
jurisdiction: it does not involve a dispute about the inter-
pretation of a law or regulation or a constitutional claim.
We therefore must dismiss the appeal.
I
William F. Nailos served on active duty in the U.S.
Navy between 1940 and 1946. He died in 2002 of a
thrombo-embolism of the pulmonary arteries. At the time
of his death, he had been receiving veterans’ benefits for
physical and mental infirmities related to his service.
Shortly after Mr. Nailos died, his surviving spouse, Ms.
Nailos, requested Dependency and Indemnity Compensa-
tion (DIC) benefits from the VA. See 38 U.S.C. §§ 1310,
1318 (providing for DIC benefits to a veteran’s spouse, chil-
dren, or parents when a veteran’s disability is connected to
military service or otherwise compensable). In 2004, the
NAILOS v. WILKIE 3
Board denied that claim, finding no service connection of
the cause of death. Supplemental Appendix (S.A.) 30–55;
see id. at 32, 34, 37–46, 55. The Veterans Court affirmed
in 2006. S.A. 56–59.
On November 12, 2009, Ms. Nailos sought to reopen
her claim based on new and material evidence. See 38
U.S.C. §§ 5108, 5110. After some back and forth, the VA,
in February 2015, concluded that Mr. Nailos’s death was
connected to his service and granted benefits with an effec-
tive date of November 12, 2009, the date of the request to
reopen. S.A. 79–83. The Board agreed. S.A. 84–91. The
Veterans Court affirmed. S.A. 10–13. Ms. Nailos timely
appealed.
II
Ms. Nailos contends that she is entitled to have a May
2002 effective date for her DIC benefits because the Board’s
2004 decision on the 2002 claim was the result of CUE. The
Veterans Court rejected that contention. S.A. 12. It ruled
that a governing regulation on CUE challenges to Board
decisions, 38 C.F.R. § 20.1400(b), made such a challenge
unavailable in this case because the Board’s 2004 decision
had been reviewed by the Veterans Court. S.A. 12.
This court has limited jurisdiction to review a decision
of the Veterans Court. See 38 U.S.C. § 7292. We can re-
view a Veterans Court decision with respect to a rule of law
or the interpretation of a statute or regulation on which
that court relied. See id. § 7292(a). We may not, however,
“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 case,” unless that challenge presents a constitu-
tional question (which Ms. Nailos’s appeal does not). Id.
§ 7292(d)(2). Because we conclude that we lack jurisdiction
over this matter, we dismiss. See King v. Shinseki, 700
F.3d 1339, 1346 (Fed. Cir. 2012).
4 NAILOS v. WILKIE
Ms. Nailos does not raise any meaningful issue as to a
legal interpretation of the Veterans Court, and we see no
such issue. The statute that provides for CUE challenges
to Board decisions, 38 U.S.C. § 7111, has long been imple-
mented by duly promulgated VA regulations, including 38
C.F.R. § 20.1400(b). The regulation makes plain that a
CUE challenge to a Board decision is unavailable if the
Board decision has been appealed to a court of competent
jurisdiction, including the Veterans Court or this court,
once the court decides the issue. 1 We have long recognized
the validity of the regulations and the meaning of section
20.1400(b) as relevant here. See Winsett v. Principi, 341
F.3d 1329, 1331–32 (Fed. Cir. 2003); Disabled American
Veterans v. Gober, 234 F.3d 682, 693 (Fed. Cir. 2000). The
Veterans Court applied that settled meaning. And it also
applied the settled legal conclusion that the “benefit of the
doubt” rule is not applicable to a CUE challenge. See Bur-
den v. Shinseki, 727 F.3d 1161, 1170 (Fed. Cir. 2013); Yates
v. West, 213 F.3d 1372, 1375 (Fed. Cir. 2000).
In addition to her CUE argument, Ms. Nailos contends
that certain hearings were not properly recorded and that
transcripts were not available to her. She has not identi-
fied why this is legal error. Ms. Nailos also has not shown
prejudice from the asserted error. See Menegassi v.
Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011) (applying
the harmless error standard). Where, as here, a claim is
1 The regulation reads as follows:
All final Board decisions are subject to revision un-
der this subpart [concerning CUE] except:
(1) Decisions on issues which have been ap-
pealed to and decided by a court of compe-
tent jurisdiction; and
(2) Decisions on issues which have subse-
quently been decided by a court of compe-
tent jurisdiction.
NAILOS v. WILKIE 5
reopened based on new and material evidence and benefits
are then granted, the effective date cannot be earlier than
the date on which reopening was sought. See 38 U.S.C. §
5110(a); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed.
Cir. 2005). Therefore, because Ms. Nailos cannot as a mat-
ter of law be granted an effective date prior to November
12, 2009, any error regarding the recording or transcribing
of the 2006 hearing is harmless.
We have considered Ms. Nailos’s arguments but find
them to be directed to questions of fact or the application
of law to fact, rather than to the proper interpretation of a
statute or regulation. Given the limits on our jurisdiction,
we must dismiss the appeal.
No costs.
DISMISSED