NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILFREDO E. UGAY, ACTING AS THE PERSONAL
REPRESENTATIVE OF THE ESTATE OF JAIME D.
UGAY,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-2625
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-3790, Judge Margaret C.
Bartley.
______________________
Decided: October 6, 2017
______________________
WILFREDO E. UGAY, Surigao City, Surigao Del Norte,
Philippines, pro se.
ANAND RAVI SAMBHWANI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
2 UGAY v. SHULKIN
JR., ELIZABETH M. HOSFORD; CHRISTOPHER O. ADELOYE, Y.
KEN LEE, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
Before MOORE, MAYER, and STOLL, Circuit Judges.
PER CURIAM.
Wilfredo E. Ugay, acting as the personal representa-
tive of the Estate of Jaime D. Ugay, appeals from the
decision of the United States Court of Appeals for Veter-
ans Claims (“Veterans Court”) affirming the Board of
Veterans’ Appeals (“Board”) decision denying revision or
reversal, based on clear and unmistakable error (“CUE”),
of a November 2011 Board decision denying accrued
benefits. For the reasons discussed below, we dismiss for
lack of jurisdiction.
BACKGROUND
Felimon A. Elacion (“the veteran”) served with the
Philippine Commonwealth Army from September 1941 to
May 1942 and with the Recognized Guerrillas and Com-
bination Service from February 1943 to April 1946. He
was awarded veteran service connection for psychosis and
assigned a 100% evaluation, effective July 6, 1955. He
died on March 1, 2005. The immediate cause of death
was listed as multi-organ failure and the contributing
cause of death was listed as “old age.” At the time of his
death, Jaime Ugay, Mr. Elacion’s son-in-law, was his legal
guardian. In October 2005, Jaime Ugay submitted an
informal claim for burial benefits, and the following
month, Veterans Affairs (“VA”) sent him VA Form 21-530,
“Application for Burial Benefits,” and provided the VA’s
web site address “for general information about benefits
and eligibility.”
In December 2005, Jaime Ugay submitted the formal
application for burial benefits and claimed the veteran’s
UGAY v. SHULKIN 3
death was service connected. The VA Regional Office
(“RO”) granted $300 in burial benefits, and Jaime Ugay
disagreed with the decision. In a separate appeal, the RO
denied service connection for the cause of death, which
the Veterans Court affirmed in August 2010.
In November 2008, Jaime Ugay filed a formal claim
for accrued benefits, seeking reimbursement for expenses
related to the veteran’s last sickness and burial. The RO
denied the claim. Jaime Ugay appealed, and in November
2011, the Board denied the claim of entitlement to ac-
crued benefits, finding there were no claims pending at
the time of the veteran’s death and the claim for accrued
benefits was received by VA more than one year after the
veteran’s death. Jaime Ugay appealed to the Veterans
Court, which dismissed his appeal for failure to file an
opening brief.
In December 2014, Jaime Ugay filed a motion to re-
verse or revise, on the basis of CUE, the Board’s Novem-
ber 2011 decision. In June 2015, the Board determined
that the Board’s November 2011 denial of entitlement to
accrued benefits was not clearly and unmistakably erro-
neous. The Board determined that nothing in Jaime
Ugay’s statements submitted during the one-year period
following the veteran’s death, including the application
for burial benefits, indicated he was seeking or believed
he was entitled to accrued benefits, and it noted that the
formal claim made through VA Form 21-601 was received
by the RO in November 2008, more than one year after
the veteran’s death. It stated the VA’s letter providing
the form to claim burial benefits satisfied the VA’s obliga-
tion under 38 C.F.R. § 3.150(b), and it declined to address
arguments related to the merits of the underlying accrued
benefits claim.
Jaime Ugay appealed, and in May 2016, the Veterans
Court affirmed. The Veterans Court responded to Jaime
Ugay’s argument that the VA failed to send him a formal
4 UGAY v. SHULKIN
application for accrued benefits pursuant to
38 C.F.R. § 3.150(b) and this failure excuses him from the
obligation to file an accrued benefits claim within one
year of the veteran’s death. It quoted Westberry v. Princi-
pi,
255 F.3d 1377, 1382 (Fed. Cir. 2001), to explain “it is
the ‘apparent’ entitlement to benefits, and not merely
‘potential’ or ‘possible’ entitlement that triggers the VA’s
obligation to send an application.” It noted that the first
and second sentences of § 3.150(b) state only that an
application will be sent to a “dependent,” but Jaime Ugay
did not assert, and it did not discern a basis to conclude,
that he meets any definition of “dependent.”
The Veterans Court also responded to Jaime Ugay’s
argument that the October 2005 application for burial
benefits constituted a timely informal claim for accrued
benefits. It determined that because Jaime Ugay was not
the veteran’s surviving spouse or child, his application for
burial benefits could not constitute an informal claim for
dependency and indemnity compensation, and the VA was
not required to consider his claim for burial benefits as a
claim for accrued benefits under 38 C.F.R. § 3.152. The
Veterans Court concluded that the Board’s decision was
supported by adequate reasons or bases and was not
arbitrary, capricious, an abuse of its discretion, or other-
wise not in accordance with the law.
Jaime Ugay appealed to this court, but the appeal was
dismissed for failure to file a conforming, informal open-
ing brief. On January 3, 2017, Wilfredo Ugay
(“Mr. Ugay”), Jaime’s son, informed this court that his
father passed away and moved to substitute himself as
appellant. By order filed March 22, 2017, this court
recalled the case’s mandate, reinstated the appeal, and
authorized the substitution of the Estate of Jaime D.
Ugay as appellant in the appeal.
UGAY v. SHULKIN 5
Mr. Ugay, acting as the personal representative of the
Estate of Jaime D. Ugay, appeals from the Veterans
Court’s decision.
DISCUSSION
Our jurisdiction to review decisions by the Veterans
Court is limited by statute. Unless an appeal raises a
constitutional issue, we lack jurisdiction to review “a
challenge to a factual determination” or “a challenge to a
law or regulation as applied to the facts of a particular
case.” 38 U.S.C. § 7292(d)(2).
Mr. Ugay does not challenge the validity of any stat-
ute or regulation or the interpretation thereof. See
38 U.S.C. § 7292(d)(1). The Veterans Court’s review of
the Board’s July 2015 determination as to whether there
was CUE in the Board’s November 2011 decision involves
only the application of law to fact.
Mr. Ugay’s arguments on appeal challenge the
Board’s factual determinations and the Veterans Court’s
application of law to the facts of his case. He argues the
Veterans Court failed to assess the scope of his claim in
view of the entire evidence of record. But the Veterans
Court’s evaluation and weighing of evidence are factual
determinations which we lack jurisdiction to review.
Mr. Ugay asserts that the Veterans Court legally erred in
interpreting a number of statutory and regulatory provi-
sions, such as 38 C.F.R. § 3.150(b), but the Veterans
Court did not interpret or expand upon the meaning of
any statutes, regulations, or other legal principles. See
Githens v. Shinseki,
676 F.3d 1368, 1372 (Fed. Cir. 2012).
Mr. Ugay asserts that his appeal raises a constitutional
issue, but because he fails to identify or elaborate upon
any constitutional issue and merely challenges the merits
of the Veterans Court’s decision, his characterization of
any issue as constitutional does not control. See Flores v.
Nicholson,
476 F.3d 1379, 1382 (Fed. Cir. 2007).
6 UGAY v. SHULKIN
CONCLUSION
Because we lack jurisdiction over Mr. Ugay’s appeal,
we dismiss.
DISSMISSED
COSTS
No costs.
