Loriana M. Juan v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
LORIANA M. JUAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7138
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-932, Judge Ronald M.
Holdaway.
___________________________
Decided: January 18, 2011
___________________________
LORIANA M. JUAN , Bataan C-2112, Philippines, pro se.
JOSEPH P IXLEY , Trial Attorney, Commercial Litigation
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. D AVIDSON , Director, and MARTIN
F. H OCKEY , Assistant Director. Of Counsel on the brief

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JUAN v. DVA 2
was MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel.
__________________________
Before GAJARSA , D YK , and PROST, Circuit Judges.
PER C URIAM.
Loriana M. Juan (“Ms. Juan”) appeals a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”). The Veterans Court affirmed a deci-
sion by the Board of Veterans Appeals (“Board”) that Ms.
Juan had not presented new and material evidence to
reopen her claim of entitlement to dependency and
indemnity compensation (“DIC”) benefits for her veteran
husband’s death. See Juan v. Shinseki, No. 09-932 (Vet.
App. Apr. 28, 2010). Because we lack jurisdiction over her
appeal, we dismiss.
BACKGROUND
Ms. Juan’s husband, Bernardino L. Juan (“the vet-
eran”), served as a member of a guerilla unit in the Army
of the Philippines in October 1944. On November 12,
1944, the United States Army officially recognized the
veteran’s guerrilla unit, starting the unit’s recognized
service with the United States military. According to
military records, the veteran died the same day of an
unknown illness, and in October 1947, his parents filed a
DIC claim. The Regional Office denied the claim, finding
that the veteran contracted the unknown disease prior to
the beginning of his recognized service (November 12,
1944) and that any increase in severity was due to the
disease’s natural progress. No appeal was filed.
In October 2002, Ms. Juan attempted to reopen the
claim, asserting that she possessed new and material
evidence that the veteran died in September 1944, rather

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JUAN v. DVA 3
than on November 12, and that his cause of death was a
gunshot wound. She submitted affidavits from some of
the veteran’s fellow service members in support of her
claim. The Board denied her claim in January 2005. The
Veterans Court remanded the case to ensure the Veterans
Administration (“VA”) had complied with its “duty to
assist” under the Veterans Claims Assistance Act of 2000
(“VCAA”). On a second appeal, the Board again denied
her claim in August 2008. On April 28, 2010, the Veter-
ans Court affirmed. It held that although the affidavits
constituted new evidence, they were immaterial because
the veteran could not be entitled to service connection if
he died in September 1944, before his unit was officially
recognized by the United States Army in November 1944.
Ms. Juan timely appealed to this court.
D ISCUSSION
This court’s jurisdiction to hear appeals from the Vet-
erans Court is limited by statute. Under 38 U.S.C. §
7292(a) and (c), we may review decisions of the Veterans
Court only with respect to a “challenge to the validity of
any statute or regulation or any interpretation thereof . . .
.” We cannot, absent a constitutional issue, review a
Veterans Court decision as to (1) a factual determination
or (2) a law or regulation as applied to the facts of a
specific case. See 38 U.S.C. § 7292(d)(2).
Ms. Juan does not challenge the Veterans Court’s in-
terpretation of the new and material evidence standard or
any other regulation or statute. Instead, Ms. Juan argues
that the Veterans Court erred by: (1) failing to find that
the veteran was already in service prior to November
1944; (2) failing to apply the “benefit of the doubt” doc-
trine to her case; and (3) failing to find that the VA did
not provide assistance as required by the VCAA. First,
we lack jurisdiction over Ms. Juan’s contention that the

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JUAN v. DVA 4
veteran was “already in service prior to his death.” The
Veterans Court’s conclusion that the veteran’s unit did
not become officially recognized until November 12, 1944,
is an unreviewable factual finding.
Second, the “benefit of the doubt” doctrine applies
only when “there is an approximate balance of positive
and negative evidence.” 38 U.S.C. § 5107(b). It is inap-
plicable where, as here, “the Board determines that the
preponderance of the evidence weighs against the vet-
eran's claim or when the evidence is not in equipoise.”
See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir.
2009) (internal quotations omitted).
Third, the Board, on remand from the Veterans Court,
found in August 2008 that the Veterans Administration
had complied with its duty to assist Ms. Juan “in obtain-
ing evidence pertinent to her claim.” Resp’t’s App. 9. The
Board also found that Ms. Juan was given full notice of
the requirements for filing a claim. The Veterans Court
did not explicitly address this issue. Appellant merely
challenges the Board’s factual finding that the VA com-
plied with its notification and assistance duties under the
VCAA. We lack jurisdiction over such a claim. Therefore,
we dismiss.
DISMISSED
COSTS
No costs.

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