Julia M. Burns v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JULIA M. BURNS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1878
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5946, Judge Michael P. Allen.
______________________
Decided: July 22, 2022
______________________
K ENNETH D OJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
MATTHEW J UDE CARHART , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. B OYNTON, E RIC P. BRUSKIN,
BORISLAV K USHNIR, P ATRICIA M. MC CARTHY ; BRIAN D.
G RIFFIN, EVAN S COTT G RANT , Office of General Counsel,
Case: 21-1878 Document: 38 Page: 1 Filed: 07/22/2022

-- 1 of 8 --

BURNS v. MCDONOUGH 2
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before STOLL , SCHALL , and CUNNINGHAM , Circuit Judges.
SCHALL , Circuit Judge.
D ECISION
Julia M. Burns is the surviving spouse of Willie J.
Burns, a veteran. She appeals the January 22, 2021 deci-
sion of the United States Court of Appeals for Veterans
Claims (“Veterans Court”) in Burns v. Tran, No. 19-5946,
2021 WL 222260 (Vet. App. Jan. 22, 2021). In that deci-
sion, the Veterans Court affirmed the May 10, 2019 deci-
sion of the Board of Veterans’ Appeals (“Board”) that
denied Mrs. Burns’s motion to revise on the basis of clear
and unmistakable error (“CUE”) a December 2012 rating
decision that granted an effective date of May 4, 2011, but
no earlier, for the award of service connection for the cause
of her husband’s death. J.A. 31. For the reasons set forth
below, we dismiss for lack of jurisdiction.
D ISCUSSION
I
Mr. Burns served in the United States Army from Jan-
uary of 1971 to April of 1972. His time in the Army in-
cluded service in the Republic of Vietnam (“Vietnam”).
Burns, 2021 WL 222260, at *1. On November 18, 2000, Mr.
Burns died of a myocardial infarction. Within a year of her
husband’s death, Mrs. Burns requested that the Depart-
ment of Veterans Affairs (“VA”) provide her with a flag for
his burial. J.A. 31.
In March of 2010, the VA proposed revisions to the reg-
ulation governing presumptive service connection for dis-
eases associated with exposure to herbicides. 75 Fed. Reg.
14,391 (Mar. 25, 2010). Relevant to this case, the Secretary
Case: 21-1878 Document: 38 Page: 2 Filed: 07/22/2022

-- 2 of 8 --

BURNS v. MCDONOUGH 3
of Veterans Affairs determined that myocardial infarction
should be presumptively service connected to service in Vi-
etnam, where the United States used the herbicidal Agent
Orange. Id. at 14,392–93, 14,401. These proposed revi-
sions went into effect on August 31, 2010. 75 Fed. Reg.
53,202, 53,216 (Aug. 31, 2010) (Final Rule); see 38 C.F.R.
§ 3.309(e) (2010).1
Following this regulatory change, in May of 2012, Mrs.
Burns submitted a claim to the VA for dependency and in-
demnity compensation (“DIC”) benefits based upon the fact
that Mr. Burns had served in Vietnam and had died of a
myocardial infarction. J.A. 11–18.
In a decision dated December 13, 2012, the VA regional
office (“RO”) granted service connection due to the pre-
sumption of Mr. Burns having been exposed to Agent Or-
ange. Id. at 19–20. Pursuant to 38 C.F.R. § 3.114(a)(3),
the RO assigned an effective date of May 4, 2011, which
was one year prior to the receipt of Mrs. Burns’s claim. Id.
at 21. Mrs. Burns did not appeal the RO’s decision, and it
became final. Id. at 34.
In February of 2017, Mrs. Burns moved to revise the
December 2012 rating decision on the basis of CUE. Id. at
23–24. In this motion, which was made before the RO, Mrs.
Burns argued that her request for a burial flag put the VA
on notice that Mr. Burns had died and that 38 C.F.R.
§ 3.150(b) required the VA to send her an application for
1 The Agent Orange Act, 38 U.S.C. § 1116, grants a
presumption of service connection for veterans who served
in Vietnam and who suffer from certain diseases. Section
3.309(e) of 38 C.F.R. provides the list of diseases “associ-
ated with exposure to certain herbicide agents” that are
subject to presumptive service connection if certain other
requirements are met. 38 C.F.R. §§ 3.307(a)(6), 3.309(e).
Case: 21-1878 Document: 38 Page: 3 Filed: 07/22/2022

-- 3 of 8 --

BURNS v. MCDONOUGH 4
DIC benefits. Id.2 Mrs. Burns contended that she filed an
informal claim for survivor benefits when she notified the
VA of her husband’s death. Id. at 24. Consequently, she
claimed, she was entitled to an effective date of November
19, 2000, the day after her husband’s death, for her DIC
benefits. Id. On April 25, 2017, the RO denied Mrs.
Burns’s CUE motion. Id. at 43–44.
By separate letter dated September 14, 2017, Mrs.
Burns requested “that the entire paper claims file in th[e]
case be made available for [her attorney] to review in per-
son.” Id. at 25. On March 15, 2018, the VA notified Mrs.
Burns’s attorney that the folder relating to her claim was
sent to the VA’s Records Management Center in 2012, but
that the folder had been destroyed. Id. at 26. The VA fur-
ther stated that the records remained available electroni-
cally. Id. In the meantime, Mrs. Burns had appealed the
denial of her CUE motion to the Board. Id. at 45.
By Order dated May 10, 2019, the Board denied Mrs.
Burns entitlement to an effective date earlier than May 4,
2011, for the grant of service connection for Mr. Burns’s
death. Id. at 31–39. The Board observed that 38 C.F.R.
§ 3.150(b) only requires the VA to forward an application
for benefits to dependents who have “apparent entitle-
ment” to such benefits. Id. at 33. The Board determined
that, in 2000, when she requested a burial flag, Mrs. Burns
did not have “apparent entitlement” for two reasons. First,
she could not have had apparent entitlement based upon
benefits being received by Mr. Burns because prior to his
death Mr. Burns “was not service connected for any disa-
bilities.” Id. at 36. Second, Mrs. Burns could not have had
2 38 C.F.R. § 3.150(b) provides that, “[u]pon receipt
of notice of death of a veteran, the appropriate application
form will be forwarded for execution by or on behalf of any
dependent who has apparent entitlement to pension, com-
pensation, or dependency and indemnity compensation.”
Case: 21-1878 Document: 38 Page: 4 Filed: 07/22/2022

-- 4 of 8 --

BURNS v. MCDONOUGH 5
apparent entitlement to benefits based upon presumptive
exposure to Agent Orange because myocardial infarction,
Mr. Burns’s cause of death, was not added to 38 C.F.R.
§ 3.309(e) until 2010, approximately nine years after Mrs.
Burns notified the VA of her husband’s death. J.A. 37. Ac-
cordingly, the Board concluded that the RO did not commit
CUE when it assigned an effective date of May 4, 2011, for
Mrs. Burns’s entitlement to DIC benefits. Id.
As noted, in its decision dated January 22, 2021, the
Veterans Court affirmed the decision of the Board. Burns,
2021 WL 222260, at *3. In its decision, however, the court
took an approach different from that followed by the Board.
The court started from the premise that a violation of the
VA’s duty to assist cannot constitute CUE. Id. at *2 & n.17
(citing Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir.
2002) (en banc)). The court then held that 38 C.F.R.
§ 3.150(b) “imposes a duty-to-assist requirement on VA to
forward the appropriate forms to dependents with appar-
ent entitlement.” Id. at *3 (internal quotation marks and
citation omitted). Because violations of the duty to assist
cannot constitute CUE, the Veterans Court concluded that
an alleged violation of § 3.150(b) likewise could not consti-
tute CUE. Id. The court stated that it did not need to reach
the question of Mrs. Burns’s “apparent entitlement” to ben-
efits under the regulation. Id. Nevertheless, the court ex-
pressed approval of the Board’s decision on this point. Id.
Following the decision of the Veterans Court, Mrs. Burns
timely appealed.
II
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We have
jurisdiction to decide an appeal insofar as it presents a
challenge to the court’s decision regarding a rule of law, in-
cluding a decision about the interpretation or validity of
any statute or regulation. Id. at § 7292(a), (d)(1). However,
we lack jurisdiction to entertain a challenge to a factual
Case: 21-1878 Document: 38 Page: 5 Filed: 07/22/2022

-- 5 of 8 --

BURNS v. MCDONOUGH 6
determination or a challenge to the application of a law or
regulation to the facts of a particular case where, as here,
the appeal presents no constitutional issue. Id. at
§ 7292(d)(2).
III
On appeal, Mrs. Burns makes two arguments. Her
first argument is that the Veterans Court erred in holding
that § 3.150(b) is a duty-to-assist regulation. According to
Mrs. Burns, the duty-to-assist doctrine focuses on the VA’s
obligation to obtain evidence, which does not exist until an
application for benefits is filed. Appellant’s Br. 7, 9–11.3
Second, Mrs. Burns turns to the requirement in § 3.150(b)
that the surviving spouse “ha[ve] apparent entitlement to
[benefits].” Id. at 15–16. Citing the fact that records relat-
ing to her claim were destroyed, Mrs. Burns asks us to in-
voke the doctrine of spoliation, see Residential Funding
Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 107 (2d
Cir. 2002); Silvestri v. General Motors Corp., 271 F.3d 583,
590 (4th Cir. 2001), and impose upon the VA an adverse
inference as to what the destroyed records would demon-
strate:
The willful destruction of Mr. Burns’ records pre-
vents Mrs. Burns from meeting any standard, no
matter how narrow or broad, to demonstrate that
she had an “apparent entitlement” to benefits. In
keeping with the pro-veteran nature of this bene-
fits scheme, and the Court’s important interest in
controlling the judicial process, it would be appro-
priate in this case to presume that the evidence VA
destroyed was favorable to Mrs. Burns and estab-
lished that she had “apparent entitlement to
3 The Secretary agrees with Mrs. Burns that
§ 3.150(b) is not part of the VA’s statutory duty to assist.
Appellee’s Br. 27. We agree with the parties on this point.
Case: 21-1878 Document: 38 Page: 6 Filed: 07/22/2022

-- 6 of 8 --

BURNS v. MCDONOUGH 7
[benefits].” As such, the VA had an obligation un-
der § 3.150(b) to send her an application.
Appellant’s Br. 19.
Recognizing that the core issue in this case is whether,
at the time of her husband’s death, Mrs. Burns had appar-
ent entitlement to DIC benefits, the Secretary takes the po-
sition that this is a factual matter that we lack jurisdiction
to decide. Appellee’s Br. 14–15. In the alternative, the Sec-
retary argues that, if we do reach the issue, we should af-
firm the determination of the Board and the Veterans
Court that, at the time of her husband’s death, Mrs. Burns
did not have apparent entitlement to DIC benefits. Id. at
15–18. Finally, the Secretary urges us to reject Mrs.
Burns’s spoliation argument. Id. at 18–26.
In reply, Mrs. Burns does not address the Secretary’s
jurisdictional argument. Rather, urging us to apply the
spoliation doctrine and thus apply an adverse inference
against the Secretary, she contends that the record estab-
lishes an apparent entitlement to DIC benefits as of the
date of Mr. Burns’s death in November of 2000. Appellant’s
Br. 13–17. Mrs. Burns thus urges us to reverse the Veter-
ans Court’s affirmance of the Board’s denial of her CUE
motion. Id.
IV
We agree with the Secretary that we lack jurisdiction
in this case. The question in the case is whether Mrs.
Burns had apparent entitlement to benefits when she re-
quested a burial flag in 2000. As seen above, the Board
determined, based upon the facts before it (that Mr. Burns
was not receiving benefits at the time of his death and that
myocardial infarction was not added to 38 C.F.R. § 3.309(e)
until 2010), that Mrs. Burns could not have had apparent
entitlement to DIC benefits at the time of her husband’s
death in 2000. In asking us to hold that the Board erred in
its CUE determination, Mrs. Burns is asking us to resolve
Case: 21-1878 Document: 38 Page: 7 Filed: 07/22/2022

-- 7 of 8 --

BURNS v. MCDONOUGH 8
factual matters beyond our jurisdiction. See Wolfe v. Peake,
281 F. App’x 993, 994–95 (Fed. Cir. 2008).
CONCLUSION
For the foregoing reasons, we lack jurisdiction to adju-
dicate Mrs. Burns’s appeal. The appeal is therefore dis-
missed.4
DISMISSED
COSTS
No costs.
4 Because we lack jurisdiction in this case, it is not
necessary for us to address Mrs. Burns’s spoliation claims.
We note, however, that even if we were to agree that an
adverse presumption could apply in the context of VA pro-
ceedings, see Jandreau v. Nicholson, 492 F.3d 1372, 1375
(Fed. Cir. 2007); Cromer v. Nicholson, 455 F.3d 1346, 1350–
51 (Fed. Cir. 2006), Mrs. Burns’s claim of spoliation would
require us to address factual matters and/or the applica-
tion of law to fact. These would include, e.g., whether the
records were destroyed with a culpable state of mind and
whether the destroyed records were relevant to Mrs.
Burns’s claim. See Residential Funding Corp., 306 F.3d at
107. Accordingly, even if the spoliation claim were
properly before us, we would lack jurisdiction to adjudicate
it.
Case: 21-1878 Document: 38 Page: 8 Filed: 07/22/2022

-- 8 of 8 --