Ugay v. Dept. Of Veterans Affairs , 434 F. App'x 900 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JAIME UGAY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2011-7069
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-4295, Chief Judge Bruce
E. Kasold.
____________________________
Decided: August 9, 2011
____________________________
JAIME UGAY, of Surigao City, Philippines, pro se.
P. DAVIS OLIVER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and TODD M.
UGAY v. DVA 2
HUGHES, Deputy Director. Of counsel on the brief was
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before NEWMAN, PROST, and REYNA, Circuit Judges.
PER CURIAM.
Jaime Ugay appeals the United States Court of Vet-
erans Claims (“Veterans Court”) affirmance of the deci-
sion of the Board of Veterans’ Appeals (“Board”) denying
entitlement to burial benefits. Because Mr. Ugay does
not raise any issues on appeal that fall within our juris-
diction, we dismiss.
BACKGROUND
Mr. Ugay applied for Department of Veterans Affairs
(“VA”) burial benefits following the death of his father-in-
law, Felimon A. Elacion. Mr. Elacion, the veteran, served
in the Philippine Commonwealth Army from September
1941 to May 1942 and with the Recognized Guerrillas and
Combination Service from February 1943 to April 1946.
Mr. Elacion died in March 2005; he was eighty-nine years
old. The death certificate listed the immediate cause of
death as multi-organ failure, with old age contributing to
death. At the time of his death, Mr. Elacion had estab-
lished service connection for affective psychosis.
Mr. Ugay sought burial benefits on the grounds that
the actual cause of Mr. Elacion’s death was affective
psychosis, and that pulmonary tuberculosis (“TB pneu-
monia”) not multi-organ failure due to old age was the
3 UGAY v. DVA
contributing factor. 1 In support of his claim, Mr. Ugay
offered affidavits from two physicians: the physician who
signed Mr. Elacion’s death certificate and a physician who
had treated Mr. Elacion.
In her affidavit, the physician who signed the death
certificate affirmed that she had listed the immediate
cause of death as “Immediate cause-multiorgan failure”
and the contributing cause of death as “old age.” The
physician further affirmed that Mr. Elacion’s cause of
death was actually affective psychosis with TB Pneumo-
nia as a contributing factor. In a subsequent statement,
the physician explained that her initial conclusion of
multi-organ failure as a result of old age was due to the
fact that she was not Mr. Elacion’s attending physician
and had no additional medical history before her:
With the limited information about the deceased
and not being able to attend the deceased, I there-
fore considered the old age of the deceased and his
being bedridden already as a significant condition
contributing to the death as well as the one that
could lead to multiorgan failure common in the
elderly, hence the cause of death in the death cer-
tificate.
Mr. Ugay also submitted an affidavit by one of Mr.
Elacion’s attending physicians which provided that Mr.
Elacion “was confined and treated by my father, the late
Dr. Pio Castro from TB Pheumonia (sic) sometime in 1951
and I can vividly recall it for I am a living witness to it.”
The physician further attested that Mr. Elacion had
1 In order for burial benefits to be awarded on this
basis, Mr. Ugay also had to demonstrate that Mr. Ela-
cion’s TB pneumonia was service connected.
UGAY v. DVA 4
suffered from TB pneumonia up until his death and that
this illness significantly contributed to his death.
The physician briefly addressed the issue of Mr. Ela-
cion’s affective psychosis, concluding that affective psy-
chosis contributed to Mr. Elacion’s TB pneumonia.
The Regional Office (“RO”) requested a medical opin-
ion from a VA physician concerning whether Mr. Elacion’s
service-connected affective psychosis materially caused or
contributed to his death. The VA physician reviewed the
private medical records, service medical records, and VA
examination records and concluded that Mr. Elacion’s
death was not caused by or the result of affective psycho-
sis and was not service connected.
Mr. Ugay appealed the RO’s decision to the Board,
contending that Mr. Elacion died as a result of service-
connected affective psychosis and TB pneumonia. The
Board concluded that “the death certificate and VA exam-
iner’s opinion are more probative [than the private medi-
cal statements]. The VA examiner reviewed all records in
the claims file and opined that affective psychosis was not
a primary or contributing cause of the veteran’s death as
the veteran’s death was not premature.” The Board
further found that Mr. Elacion’s TB pneumonia was not
service connected:
No probative evidence was provided substantiat-
ing assertions that PT [sic] pneumonia was
caused by or incurred in service or caused by a
service connected disability. The service treat-
ment records are void of any findings, symptoms,
complaints, or diagnoses of pulmonary tuberculo-
sis and/or pneumonia. . . . In the absence of credi-
ble medical evidence linking the veteran’s
5 UGAY v. DVA
pulmonary tuberculosis to a documented disease,
event, or injury in service, service connection for
TB Pneumonia as the cause of death must be de-
nied.
Accordingly, the Board held that the preponderance of the
evidence was against Mr. Ugay’s claim and, therefore, the
cause of Mr. Elacion’s death was not service connected.
Mr. Ugay appealed the Board’s determination to the
Veterans Court, alleging that the Board had clearly erred
in its determination that the preponderance of the evi-
dence was against his claim; inadequately stated the
reasons or bases for its decision; misapplied the law;
failed to ensure that a medical examination was provided;
and failed to adjudicate an unrelated claim. 2
The Veterans Court concluded that the record did not
support Mr. Ugay’s arguments. The court noted that to
establish clear error in the Board’s weighing of the evi-
dence, Mr. Ugay had to demonstrate that based on the
record as a whole, the Board’s assignment of weight was
not plausible. The court observed that the Board relied
on the certified cause of death as being organ failure and
old age, as well as a VA medical opinion that Mr. Ela-
cion’s death was not premature and that his service-
connected affective psychosis was not a primary or con-
tributing cause of his death. The Veterans Court found
no error in the Board’s application of the law. 3
2 Mr. Ugay also sought sanctions against the Board,
which the Veterans Court denied. The sanctions request
is repeated on appeal. Given the disposition of the cur-
rent action, the request is moot.
3 The Veterans Court noted that Mr. Ugay’s filing
with the Veterans Court may constitute an informal claim
for such benefits and that Mr. Ugay and the Secretary of
UGAY v. DVA 6
Mr. Ugay now appeals the Veterans Court’s determi-
nation.
DISCUSSION
Our review of decisions by the Veterans Court is lim-
ited. Pursuant to 38 U.S.C. § 7292(a), we may only re-
view “the validity of a decision of the [c]ourt on a rule of
law or of any statute or regulation . . . or any interpreta-
tion thereof (other than a determination as to a factual
matter) that was relied on” by the Veterans Court. We
have jurisdiction to “decide all relevant questions of law,
including interpreting constitutional and statutory provi-
sions.” 38 U.S.C. § 792(d)(1). We cannot, absent a consti-
tutional issue, “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.”
38 U.S.C. § 7292(d)(2).
Mr. Ugay first contends that the Board relied on an
invalid death certificate. According to Mr. Ugay, because
the signing physician subsequently indicated that “[l]ater
it was known that said Felimon A. Elacion’s cause of
death is affective psychosis with TB Pneumonia as a
contributing factor,” the death certificate relied on by the
Board is invalid, because it states that the cause of death
was multi-organ failure due to old age. The Board was
not moved by the physician’s later statement and con-
cluded that there was “[n]o rationale or evidence . . .
provided” to support the assertion that the veteran in fact
died of affective psychosis with TB pneumonia as a con-
tributing factor.
Veterans Affairs should pursue this potential claim. The
disposition of the present appeal should not be read as
limiting any such informal claim.
7 UGAY v. DVA
Mr. Ugay also argues that the Board failed to properly
evaluate the evidence of service connection for TB-
pneumonia, but Mr. Ugay does not explain how the Board
failed to do so. Rather, Mr. Ugay simply states that the
Board should have given more weight than it did to the
physician statement that Mr. Elacion had been treated for
TB pneumonia since 1951.
In essence, Mr. Ugay argues that the Board and Vet-
erans Court erred by giving the death certificate and the
VA medical opinion more probative value than the private
physicians’ medical statements. Any disagreement with
the Board’s weighing of the evidence is merely a dis-
agreement with the Board’s fact-based determination,
which we lack jurisdiction to review. See Bastien v.
Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The
evaluation and weighing of evidence and the drawing of
appropriate inferences from it are factual determinations
committed to the discretion of the fact-finder.”).
Because Mr. Ugay has not raised an issue within our
jurisdiction, the appeal is dismissed.
DISMISSED
COSTS
No costs.