Melo v. Wilkie

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARCELA L. MELO,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-1333
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-839, Judge Joseph L. Toth.
______________________
Decided: August 8, 2018
______________________
MARCELA L. MELO, San Gabriel, La Union, Philip-
pines, pro se.
DAVID MICHAEL KERR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also repre-
sented by ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA
PREHEIM, CHAD A. READLER; MEGHAN ALPHONSO, BRIAN
D. GRIFFIN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
2 MELO v. WILKIE
______________________
Before PROST, Chief Judge, TARANTO and CHEN, Cir-
cuit Judges.
PER CURIAM.
This appeal involves a request by Marcela L. Melo,
the widow of Dominador C. Melo, a World War II veteran,
to reopen certain claims for benefits that had been denied
in earlier proceedings. The Board of Veterans’ Appeals
denied the new request, concluding that the standard for
reopening was not met, and the Court of Appeals for
Veterans Claims (Veterans Court) affirmed. In this
appeal, Mrs. Melo identifies no legal error in the Veterans
Court’s decision. She challenges only the application of
the correct legal standards to the facts. We lack jurisdic-
tion to review those challenges. We must therefore dis-
miss the appeal for lack of jurisdiction.
I
Mr. Melo served as a recognized guerilla in the Phil-
ippines between 1942 and 1945. A few years before his
death in 2004, the relevant Regional Office of the De-
partment of Veterans Affairs awarded him a 30% disabil-
ity rating for a service-connected gunshot wound to his
right arm, but the Regional Office denied compensation
for post-traumatic stress disorder, ischemic heart disease,
and other conditions and also denied a determination of
total disability based on individual unemployability
(TDIU). He appealed the denials to the Board, but while
his appeal was pending, he died from cardiovascular
disease and ischemic stroke. Mrs. Melo continued with
the appeal. The Board eventually awarded a 40% com-
pensation rating for the gunshot wound but otherwise
denied the claims.
In 2005, Mrs. Melo separately filed for dependency
and indemnity compensation under 38 U.S.C. § 1310,
MELO v. WILKIE 3
arguing that Mr. Melo’s death was caused by a service-
connected disability. The Board denied that claim in 2007
after concluding that only the right-arm gunshot wound
was service connected and that wound did not contribute
to Mr. Melo’s death. The Veterans Court affirmed the
denial in 2009.
Mrs. Melo also sought dependency and indemnity
compensation under 38 U.S.C. § 1318. That provision
allows a veteran’s death to be treated as service connected
if certain criteria are met—e.g., if the veteran had a total
disability rating for 10 years before death or for just 1
year before death if the veteran was a prisoner of war.
The Regional Office denied the claim in 2005, and Mrs.
Melo did not appeal.
In 2011, Mrs. Melo sought to reopen the service-
connection claims for her husband’s cause of death and
the dependency and indemnity compensation claim she
filed under § 1318. The Regional Office declined to reopen
the claims, concluding that Mrs. Melo had not submitted
new and material evidence. The Board affirmed that
decision in 2016, similarly concluding that Mrs. Melo did
not submit any new and material evidence. On October 3,
2017, the Veterans Court affirmed the Board’s decision,
concluding that the Board committed no clear error in its
determination that Mrs. Melo did not submit any new and
material evidence. Mrs. Melo appeals from the Veterans
Court’s decision.
II
The only congressional grant of jurisdiction to this
court that is relevant here, 38 U.S.C. § 7292, narrowly
confines our jurisdiction. We have jurisdiction to “review
[] the decision with respect to the validity of a decision of
the [Veterans] 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.” Id. § 7292(a). We
4 MELO v. WILKIE
do not have jurisdiction to “review findings of fact or
application of law to the facts, except to the extent that an
appeal presents a constitutional issue.” Cayat v. Nichol-
son, 429 F.3d 1331, 1333 (Fed. Cir. 2005) (citing 38 U.S.C.
§ 7292(d)(2)).
In this case, Mrs. Melo does not identify any aspect of
the Veterans Court’s opinion that raises a substantial
question about the validity or interpretation of a statute
or regulation. Likewise, she does not identify any argua-
ble violation of her constitutional rights. Mrs. Melo’s sole
argument appears to be that the Veterans Court should
have found a clear and unmistakable error in the Region-
al Office’s decision on her claims for compensation, requir-
ing the reopening of the claims.
It is unclear whether Mrs. Melo made an argument
asserting clear and unmistakable error—as opposed to
new and material evidence—before the Board or the
Veterans Court. But it is clear that Mrs. Melo makes no
argument in this court that the Veterans Court incorrect-
ly interpreted the clear and unmistakable error regula-
tion, 38 C.F.R. § 3.105(a), or the regulation relating to the
submission of new and material evidence, 38 C.F.R. §
3.156(a). Rather, Mrs. Melo simply restates her factual
challenges to case-specific determinations—notably,
determinations that her husband was not a prisoner of
war in the Philippines and that his post-traumatic stress
disorder was not service connected. But under 38 U.S.C.
§ 7292, we lack jurisdiction to review those determina-
tions. Kernea v. Shinseki, 724 F.3d 1374, 1382 (Fed. Cir.
2013) (concluding that we lack jurisdiction to review
whether the appellant raised a clear and unmistakable
error claim because it would “require us to review and
interpret the contents of her claim”); Yates v. West, 213
F.3d 1372, 1375 (Fed. Cir. 2000) (“Whether the [Regional
Office’s] failure to consider the Army regulations would
constitute clear and unmistakable error as defined above
is fact-based and hence beyond our jurisdiction.”).
MELO v. WILKIE 5
In her Reply Brief, Mrs. Melo relies on (and attaches)
a document that she appears to assert is new and materi-
al evidence. It is unclear whether Mrs. Melo submitted
this document to the Regional Office when she initially
petitioned to have her claim reopened; and she does not
appear to argue that the Regional Office, Board, or Veter-
ans Court failed to consider the document. Regardless,
we lack jurisdiction to evaluate whether this evidence is
new and material to her claim, an issue that is “either a
factual determination [] or the application of law to the
facts of a particular case [] and is, thus, not within this
court's appellate jurisdiction.” Barnett v. Brown, 83 F.3d
1380, 1383 (Fed. Cir. 1996); see Thompson v. Shulkin, 686
F. App’x 912, 914 (Fed. Cir. 2017) (“We lack jurisdiction to
determine whether this [newly submitted evidence]
constitutes sufficient new and material evidence”).
III
Because Mrs. Melo has not identified any legal error
committed by the Veterans Court and we lack jurisdiction
to evaluate her factual challenges, we dismiss the appeal.
No costs.
DISMISSED