Urban v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JENNIE G. URBAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7119
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 08-2789, Judge William P. Greene, Jr.
______________________________
Decided: October 7, 2011
______________________________
JENNIE G. URBAN, of Holland, Michigan, pro se.
COURTNEY S. MCNAMARA, Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and TODD M. HUGHES, Deputy Director. Of counsel on the
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
URBAN v. DVA 2
eral Counsel and RACHAEL T. SHENKMAN, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before RADER, Chief Judge, MOORE, Circuit Judge, and
AIKEN, District Judge. 1
PER CURIAM.
Jennie Urban appeals from the United States Court of
Appeals for Veterans Claims (“Veterans Court”), asserting
numerous errors by that court and the Department of
Veterans Affairs (“VA”). Several of the alleged errors are
outside this court’s jurisdiction. This court affirms on the
remainder of the questions.
I
Mrs. Urban is the surviving spouse of Matt Urban, a
highly-decorated World War II veteran. Mr. Urban
received many honors for his outstanding service, includ-
ing seven Purple Hearts and the Congressional Medal of
Honor. Mr. Urban was wounded on several occasions
during combat, and as a result was awarded service-
connected compensation following his discharge from the
military in 1946.
Mr. Urban died in March of 1995. Thereafter, Mrs.
Urban sought dependency and indemnity compensation
from the VA. In the process of helping Mrs. Urban, a
representative from the Veterans of Foreign Wars of the
United States discovered an unprocessed application for
additional service-connected benefits which Mr. Urban
had filed in 1986. The record does not disclose the reason
1
Honorable Ann Aiken, Chief Judge, United States
District Court for the District of Oregon, sitting by desig-
nation.
3 URBAN v. DVA
that the VA did not process this claim. Subsequently,
Mrs. Urban sought accrued benefits as well—“those
[benefits] based on evidence in the file at [the] date [of the
veteran’s] death . . . due and unpaid.”
38 U.S.C. § 5121(a). The VA responded with a thorough
review of Mr. Urban’s record.
The VA eventually determined that its original rat-
ings decision awarding Mr. Urban benefits at a 70 percent
disability rating had been “clearly and unmistakably
erroneous by not considering whether Mr. Urban was
entitled to service connection for residuals of wounds to
the left leg, right forearm, right hand, right thigh, and left
side of the chest.” In other words, the VA had not consid-
ered all of Mr. Urban’s service-connected injuries at the
time of his discharge. The VA revised Mr. Urban’s initial
rating, stating that his combined disability rating as of
1946 should have been 90 percent. Examining Mr. Ur-
ban’s 1986 claim, the VA concluded that Mr. Urban had a
combined disability rating of 100 percent as of May of
1986.
Mrs. Urban was therefore entitled to the accrued
benefits, equaling the difference between the retirement
pay Mr. Urban had received during his lifetime and the
money due according to the revised disability ratings. At
the time of Mr. Urban’s death, though, the accrued bene-
fits statute limited the retroactive effect of an award.
Specifically, the statute stated that the “due and unpaid”
benefits were limited to “a period not to exceed two years.”
Id. § 5121(a) (1997). 2 The Veterans Benefits Act of 2003
2
The version of section 5121 in effect at the time of
Mr. Urban’s death actually limited recovery to a period of
one year, and the statute was changed effective October 8,
1996. The VA Office of General Counsel determined,
however, that claims pending at the time of the change
would receive the benefit of the additional year.
URBAN v. DVA 4
amended the statute and removed the two year time limit,
but that amendment applies only to deaths occurring on
or after December 16, 2003. Pub. L. No. 108-183, § 104(a),
(d), 117 Stat. 2651, 2656. Accordingly, Mrs. Urban re-
ceived the difference between her husband’s retirement
pay and the amount he would have been entitled to under
a 100 percent disability rating for two years.
Mrs. Urban continued to press her claims, contending
that the VA committed a multitude of errors, including a
failure to find service-connection for a number of injuries
and a failure to give an earlier effective service-connected
date for injuries. Additionally, Mrs. Urban argued that
she was entitled to payments for the specially-adapted
house her husband required.
The Board of Veterans’ Appeals (“Board”) denied all of
Mrs. Urban’s remaining claims. In a detailed opinion, the
Board explained that it could not find service-connection
for several of Mr. Urban’s conditions. Second, the Board
held that Mrs. Urban’s claims for earlier effective dates of
certain injuries were “moot.” The Board explained that
Mrs. Urban was limited to recovery for accrued benefits
for two years, and because she had received benefits for
two years at a 100 percent rating, an earlier effective date
would provide no additional award. Third, the Board
found that the preponderance of the evidence was against
increasing any ratings. Finally, the Board held that Mrs.
Urban was not entitled to payment for a specially-adapted
house because such a payment could not be considered an
accrued benefit within the meaning of the statute. Mrs.
Urban appealed.
The Veterans Court affirmed. The Veterans Court
noted that Mrs. Urban’s claims for earlier effective dates
for injuries were “compelling but inapposite” due to the
two year limitation for accrued benefits. Finally, the
5 URBAN v. DVA
court agreed that Mrs. Urban could not receive payment
for specially adapted housing under section 5121.
Mrs. Urban appealed once again, pro se, to this court.
II
This court’s review of Veterans Court decisions is lim-
ited by 38 U.S.C. § 7292. Under subsection 7292(a), this
court may review
the validity of a decision of the [Veterans Court]
on a rule of law or of any statute or regulation
(other than a refusal to review the schedule of rat-
ings for disabilities adopted under section 1155 of
this title) or any interpretation thereof (other than
a determination as to a factual matter) that was
relied on by the Court in making the decision.
Factual disputes, including questions of law as applied to
the facts, are beyond this court’s jurisdiction unless they
involve constitutional questions. Id. § 7292(d)(2). Other-
wise, this court’s jurisdiction is limited to “all relevant
questions of law.” Id. § 7292(d)(1). Questions of statutory
interpretation are reviewed without deference. Cook v.
Principi, 353 F.3d 937, 938 (Fed. Cir. 2003).
As she did before the Board and the Veterans Court,
Mrs. Urban contends that the VA failed to award her
husband service-connection for certain injuries and failed
to give proper disability ratings. These contentions
involve questions of fact that are beyond this court’s
review. See Waltzer v. Nicholson, 447 F.3d 1378, 1380
(Fed. Cir. 2006) (noting that the sufficiency of evidence
presented is a question of fact); Pierce v. Principi, 240
F.3d 1348, 1357 (Fed. Cir. 2001) (noting that challenges to
ratings are outside this court’s jurisdiction). Likewise,
URBAN v. DVA 6
the effective date for service-connected benefits for a given
injury is a question of fact, unreviewable by this court.
Guillory v. Shinseki, 603 F.3d 981, 986 (Fed. Cir. 2010).
Mrs. Urban’s claim to benefits beyond two years, how-
ever, is a question of law and within this court’s jurisdic-
tion. As explained by the Board and the Veterans Court,
the version of the statute in effect when Mr. Urban died
provided for beneficiaries to receive accrued benefits “due
and unpaid,” but only for “a period not to exceed two
years.” 38 U.S.C. § 5121(a) (1997). This clear statutory
language controls the question Mrs. Urban raises. De-
spite the VA calculation errors on Mr. Urban’s benefits
back as far as 1946, the statute limits recovery to two
years.
Additionally, this court concludes that payment for
specially-adapted housing in accordance with 38 U.S.C. §
2101 cannot be an “accrued benefit” under section 5121.
Section 2101 establishes the requirements for a veteran to
qualify for financial assistance for specially-adapted
housing. The limitations on the assistance are provided
for in 38 U.S.C. § 2102. At the time of Mr. Urban’s death,
regulations established that the assistance available
under section 2101 would “not be available to any veteran
more than once.” 38 C.F.R. §§ 3.809, 3.809a (1997).
Plainly, the payments to be provided for specially-adapted
housing were not intended to be continuous or “periodic.”
As such, the specially-adapted housing payments are not
“accrued benefits” under section 5121. The Veterans
Court was therefore correct in denying Mrs. Urban com-
pensation for specially adapted housing.
III
Mr. Urban provided his country with extraordinary
service, sacrificing his health and well-being in the proc-
7 URBAN v. DVA
ess. But this is a court of law, bound by the statutes as
they existed at the time of Mr. Urban’s death.
AFFIRMED