Selby v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: May 7, 2024
• Docket: 24-1066
• Status: Unpublished

Opinion

Case: 24-1066 Document: 20 Page: 1 Filed: 05/07/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ANGELA GOLDMAN SELBY, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2024-1066 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 22-5763, Judge Joseph L. Falvey, Jr. ______________________

Decided: May 7, 2024 ______________________

ANGELA G. SELBY, Carthage, TX, pro se.

NATALEE A. ALLENBAUGH, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY. ______________________ Case: 24-1066 Document: 20 Page: 2 Filed: 05/07/2024

Before LOURIE, PROST, and STARK, Circuit Judges. PER CURIAM. Angela Goldman Selby appeals from a decision of the United States Court of Appeals for Veterans Claims (“Vet- erans Court”) affirming a Board of Veterans’ Appeals (“Board”) decision denying her an increased share of her late father’s accrued Department of Veterans Affairs (“VA”) disability benefits under the provisions of 38 C.F.R. § 3.816. See Selby v. McDonough, No. 22-5763, 2023 WL 5746882 (Vet. App. Sept. 6, 2023) (“Decision”). We affirm. BACKGROUND Selby is the adult daughter of Navy veteran James D. Goldman, who served honorably from June 1965 to August 1969. Decision at *1; Resp. Br. at 2. In June 2020, Gold- man died of kidney failure secondary to bladder cancer. Resp. Br. at 2−3. Goldman is survived by Selby, as well as three other adult children. R.A. 1 26. In 2021, Congress added bladder cancer to the list of conditions presumptively associated with exposure to herb- icide agents. See 38 U.S.C. § 1116(a)(2)(J). In June 2022, a VA regional office (“RO”) issued a decision awarding Goldman service connection under the Nehmer consent de- cree for the purpose of retroactive benefits for bladder can- cer associated with herbicide exposure. R.A. 9−20; see also Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175, 1177 (N.D. Cal. 1999) (describing the consent decree). The RO granted service connection with a 100 percent evaluation effective from November 29, 2006 to April 30, 2007, as well as a 100 percent evaluation from January 8, 2008 until his death in 2020. R.A. 21−24. The VA notified Selby that her father was entitled to retroactive benefits of $276,505.02

1 “R.A.” refers to the appendix filed with Respond- ent’s Brief. Case: 24-1066 Document: 20 Page: 3 Filed: 05/07/2024

SELBY v. MCDONOUGH 3

and that she and her three siblings would each receive a one-fourth share of $69,125.25. Id. Selby submitted a timely Notice of Disagreement, al- leging that she had been her father’s only caregiver and that, based on her father’s will, the retroactive benefits should not be divided equally, but instead, paid “mostly, if not all,” to her. R.A. 25. In a September 21, 2022 decision, the Board denied Selby entitlement to an increased share of accrued bene- fits. R.A. 26−31. As explained by the Board, the “provi- sions of 38 C.F.R. § 3.816 set forth the class members who may be considered for awards under the Nehmer court or- ders and govern the payment of benefits to survivors or es- tates of deceased beneficiaries.” Id. at 28. That regulation sets forth a sequential order in which retroactive benefits are to be paid out upon the death of the veteran entitled to such benefits. First, the veteran’s spouse, and next, “the class member’s child(ren) regardless of age or marital sta- tus (i.e., natural and adopted children and any stepchil- dren who were members of the class member’s household at the time of his death).” Id. at 29; see 38 C.F.R. § 3.816(f)(i)−(ii). The Board identified that Goldman had three biological children and one adopted child. R.A. 29. The Board further noted that 38 C.F.R. § 3.816(f)(1)(ii) holds that “if more than one child exists, payment will be made in equal shares [to each child].” R.A. 29 (alteration in original). The Board concluded that the law does not allow the VA to restrict payment of retroactive accrued Nehmer benefits only to certain children “regardless of [a] will or the caretaking re- sponsibilities the respective children undertook.” Id. at 30. The Veterans Court affirmed that decision. Selby ap- pealed. DISCUSSION Case: 24-1066 Document: 20 Page: 4 Filed: 05/07/2024

Our jurisdiction to review decisions of the Veterans Court is governed by 38 U.S.C. § 7292. We review legal de- terminations, including questions of statutory and regula- tory interpretation, de novo. Andre v. Principi, 301 F.3d 1354, 1358 (Fed. Cir. 2002). Absent a constitutional issue, we may not 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); Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010). The core issue in Selby’s appeal is whether or not the Veterans Court erred in affirming the Board’s decision that accrued benefits had to be equally split between Goldman’s four children. Decision at *1. To the extent that Selby ar- gues that an error arose due to a misinterpretation of 38 C.F.R. § 3.816, we have jurisdiction to decide the issue under 38 U.S.C. § 7292(a). However, Selby has not alleged any specific error on the part of the Veterans Court in in- terpreting that regulation, and we do not see an error in its analysis. As the Veterans Court correctly recognized, “a valid regulation governs the distribution of accrued benefits,” and “under this regulation, VA was required to distribute benefits to surviving children without regard to what state law or a will had to say about the matter.” Decision at *1−2 (citing Morris v. Shinseki, 26 Vet. App. 494, 508−09 (2014) (holding that when a federal statute or regulation ex- pressly covers the distribution of VA benefits, it displaces the state law governing the division of property)). Federal law thus required the VA to distribute the funds to Gold- man’s four children in equal shares under 38 C.F.R. § 3.816(f) and the VA complied with that law. Selby also appears to argue that, because she re- quested to be substituted as claimant upon her father’s death and was the sole beneficiary of his will, the VA should have treated her as if she was her father’s only child for the purposes of § 3.816. See Appellant’s Inf. Br. at 1. Case: 24-1066 Document: 20 Page: 5 Filed: 05/07/2024

SELBY v. MCDONOUGH 5

But we lack jurisdiction to review such a claim contesting the law as applied to the particular facts of Selby’s case. See 38 U.S.C. § 7292(d)(2). Relatedly, Selby argues that she should be substituted into her father’s case, stating that “38 C.F.R. § 3.816 was amended by Congress in 2008 to allow substitution in any case where a veteran dies on or after the Modernization Act of 2008 was passed into law.” Appellant’s Inf. Br. at 1. She further contends that she “meet[s] all requirements to be considered as a substitution,” noting that she filed VA Form 21P-0847, which is the form used for substitution of a claimant upon death of the original claimant, wherein that death occurs before the VA finishes processing a VA claim, decision review, or appeal. Id. But Selby does not appear to have raised an argument regarding substitution before the Veterans Court and we therefore do not have a decision as to substitution to review on appeal. We thus decline to consider such an argument under Boggs v. West, 188 F.3d 1335, 1337_38 (Fed. Cir. 1999). But even if Selby were to be substituted into the case, such substitution would not displace the distributions set forth in § 3.816. Substitution grants an eligible ac- crued-benefits claimant only the opportunity to “process[] the claim to completion” in the deceased veteran’s stead. 35 U.S.C. § 5121A(a)(1). It does not affect the way in which accrued benefits are to be distributed once a decision as to those benefits has been reached. Selby further seems to argue that the RO erred in find- ing a period of time, specifically, May 1, 2007 to January 7, 2008, non-compensable. Appellant’s Inf. Br. at 2. In par- ticular, Selby contends that during that time, Goldman un- derwent multiple medical procedures relating to his bladder cancer and should have been compensated for that time frame. Id. However, Selby does not appear to have adequately raised that argument below, which puts it out- side the scope of what is ordinarily appealable under Case: 24-1066 Document: 20 Page: 6 Filed: 05/07/2024

38 U.S.C. § 7292(a). See also Emenaker v. Peake, 551 F.3d 1332, 1337 (Fed. Cir. 2008) (“[A]ppellate courts do not con- sider issues that were not raised in the tribunal from which the appeal is taken”). We see no reason to diverge from that ordinary practice here. CONCLUSION We have considered Selby’s remaining arguments and find them unpersuasive. For the foregoing reasons, we af- firm. AFFIRMED COSTS No costs.