Regina Winters v. Robert Wilkie, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

REGINA WINTERS,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2020-1678
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-1581, Senior Judge William A.
Moorman.
______________________

Decided: September 8, 2020
______________________

R
EGINA WINTERS, Albuquerque, NM, pro se.

CHRISTOPHER L. HARLOW, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by E
THAN P. DAVIS, TARA K. HOGAN, ROBERT
EDWARD KIRSCHMAN, JR.; BRANDON A. JONAS, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 20-1678 Document: 18 Page: 1 Filed: 09/08/2020

WINTERS v. WILKIE
2
______________________

Before REYNA, CLEVENGER, and CHEN, Circuit Judges.
PER CURIAM.
Pro se Appellant Regina Winters, widow of United
States Army veteran Arthur L. Winters, appeals the Janu-
ary 10, 2020, decision of the United States Court of Appeals
of Veterans Claims affirming a denial of Mrs. Winters’s
claim that her deceased husband was entitled to an earlier
effective date for his special monthly compensation award
and that she was entitled to accrued benefits. We are stat-
utorily prohibited from reviewing the Veterans Court’s fac-
tual determinations or its application of law to particular
facts. 38 U.S.C. § 7292(d)(2). Because Mrs. Winters’s ap-
peal involves only the application of law to facts, we lack
jurisdiction over Mrs. Winters’s case, and dismiss this ap-
peal.
B
ACKGROUND
Mrs. Winters is the widow of the late Arthur L. Win-
ters. Mr. Winters served on active duty in the United
States Army from November 1940 to September 1945. J.A.
9. While in service, he was a prisoner of war of the German
government from 1943 to 1945. Id. During his lifetime, he
was granted compensation for several service-connected
disabilities, and he had claims pending before the United
States Department of Veterans Affairs when he died in De-
cember 2011. Id. Following his death, Mrs. Winters con-
tinued to pursue his pending claims as a substituted
claimant. Id.
On April 5, 2017, the Board of Veterans Appeals
(“Board”) denied entitlement to an earlier effective date for
special monthly compensation (“SMC”). J.A. 8–22. In its
decision, the Board found that the evidence put forth by
Mrs. Winters did not satisfy the statutory requirements for
an effective date prior to September 9, 2011, for SMC.
Case: 20-1678 Document: 18 Page: 2 Filed: 09/08/2020

WINTERS v. WILKIE
3
J.A. 17; see also 38 U.S.C. § 1114(s). The Board also found
that the evidence submitted to establish the SMC criteria
concerning the “need [for] regular aid and attendance” was
not sufficient for purposes of establishing entitlement to an
earlier effective date. J.A. 19; see also 38 C.F.R. § 3.352(a);
38 U.S.C. § 1114(l). Because the Board denied the earlier
effective date, Mrs. Winters’s pending claim for accrued
benefits also failed. See 38 U.S.C. § 5121(a).
The United States Court of Appeals of Veterans Claims
(“Veterans Court”) affirmed the Board’s decision on Janu-
ary 10, 2020, finding no basis to conclude that the Board’s
application of the law to the facts of the case was in error
or inadequate. J.A. 1–7. Mrs. Winters appeals the Veter-
ans Court’s decision.
A
NALYSIS
Our jurisdiction to review decisions by the Veterans
Court is limited by 38 U.S.C. § 7292. We have jurisdiction
“to review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof . . . and
to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). But we lack jurisdiction to “review (A) a chal-
lenge to a factual determination, or (B) a challenge to a law
or regulation as applied to the facts of a particular case,”
unless those challenges present constitutional issues.
38 U.S.C. § 7292(d)(2). While pro se pleadings are to be lib-
erally construed, the pro se plaintiff must nonetheless es-
tablish jurisdiction. See Reynolds v. Army & Air Force
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
In her opening brief, Mrs. Winters asserts–and we
agree–that there are no legal or constitutional challenges
in her appeal. App. Inf. Br. at 1. Rather, Mrs. Winters
challenges the Veterans Court’s decision to affirm the
Board’s application of the law to the facts of her case in
denying her claims for an earlier effective date for SMC
and accrued benefits. Because Mrs. Winters asks this
Case: 20-1678 Document: 18 Page: 3 Filed: 09/08/2020

WINTERS v. WILKIE
4
court to review the application of law to facts, we lack ju-
risdiction to hear this appeal.
CONCLUSION
Mrs. Winters’s appeal challenges the Veterans Court’s
decision to affirm the Board’s application of law to Mrs.
Winters’s particular case. Under 38 U.S.C. § 7292(d)(2),
we may not consider these challenges. We must therefore
dismiss this appeal.
DISMISSED
C
OSTS
No costs.

Case: 20-1678 Document: 18 Page: 4 Filed: 09/08/2020