Azucena P. Ovalle v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AZUCENA P. OVALLE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1000
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-2989, Judge Joseph L. Falvey,
Jr.
______________________
Decided: June 12, 2023
______________________
AZUCENA P. O VALLE , Brownsville, TX, pro se.
SEAN K ELLY G RIFFIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA B URKE, P ATRICIA M.
MCCARTHY ; AMANDA BLACKMON, Y. K EN L EE , Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
Case: 22-1000 Document: 35 Page: 1 Filed: 06/12/2023

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OVALLE v. MCDONOUGH 2
______________________
Before D YK, BRYSON, and STARK, Circuit Judges.
P ER CURIAM .
Azucena P. Ovalle appeals a decision of the Court of
Appeals for Veterans Claims (“Veterans Court”). The Vet-
erans Court affirmed a Board of Veterans’ Appeals
(“Board”) decision denying service connection for the cause
of death of veteran, Jose P. Ovalle. Ovalle v. Tran,
No. 19-2989 (Vet. App. Jan. 25, 2021). Because Ms. Ovalle
does not raise a colorable legal challenge to the Veterans
Court decision, we dismiss.
BACKGROUND
Mr. Ovalle served in the U.S. Army from June 1958 to
May 1960. He died on March 19, 2007. The death certifi-
cate lists the cause of Mr. Ovalle’s death as “Respiratory
Failure, Hepatic Cirrhosis, Portal Hypertension, Arterial
Hypertension[, and] Part II Prostrate Hypertrophy.”
S.A. 106. At the time of his death, the Department of Vet-
erans Affairs (“VA”) had not determined he had a service-
connected disability, nor did he have any pending claims
before the VA.
Following Mr. Ovalle’s death, in December 2007,
Ms. Ovalle1 filed a claim for service-connected death bene-
fits.2 Ms. Ovalle claims that Mr. Ovalle suffered from
1 The Veterans Court noted that there is conflicting
evidence as to whether Ms. Ovalle is in fact Mr. Ovalle’s
surviving spouse. The VA has not challenged Ms. Ovalle’s
status as Mr. Ovalle’s surviving spouse, and, other than
noting the discrepancy in the evidence, the Veterans Court
did not address the issue.
2 Ms. Ovalle also filed other claims which were de-
nied, raising issues not relevant to this appeal.
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OVALLE v. MCDONOUGH 3
psychiatric trauma from an injury sustained during com-
bat that supposedly took place in Germany in 1958.
Ms. Ovalle claims this psychiatric trauma led to his death
from heart disease or organ failure.
The VA regional office (RO) denied Ms. Ovalle’s claim.
She appealed to the Board. In September 2018, after sev-
eral remands, the Board upheld the denial of Ms. Ovalle’s
claim.
Ms. Ovalle appealed the Board decision to the Veterans
Court, which in January 2021 affirmed the Board decision.
The Veterans Court liberally construed Ms. Ovalle’s appeal
to assert (1) that the Board disregarded her lay testimony
regarding Mr. Ovalle’s medical conditions, and (2) that the
VA violated its duty to assist and due process by failing to
provide her materials in Spanish and by failing to assist
her in obtaining Mr. Ovalle’s service records. The Veterans
Court rejected her arguments and affirmed the Board’s de-
cision. Ms. Ovalle appeals.
D ISCUSSION
Under 38 U.S.C. § 7292, we may review decisions of the
Veterans Court only for a challenge to the validity or inter-
pretation of a statute or regulation, or on constitutional
grounds. Absent a constitutional issue, we lack jurisdiction
to 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); see Wanless v.
Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010).
In her informal brief, Ms. Ovalle contends, as she did
before the Veterans Court, that the Board failed to credit
lay evidence of Mr. Ovalle’s psychiatric symptoms and
that, based on the evidence, the Board should have decided
her case differently. We lack jurisdiction to review the fac-
tual findings made by the Board and affirmed by the Vet-
erans Court.
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OVALLE v. MCDONOUGH 4
Ms. Ovalle contends that the VA violated the duty to
assist by refusing to provide her materials in Spanish and
refusing to assist in obtaining Mr. Ovalle’s service records.
But, as the Veterans Court noted, Ms. Ovalle did not cite
anything in the record indicating that she had informed the
VA of her difficulty understanding English, and through-
out the pendency of Ms. Ovalle’s claim adjudication, she
represented herself in English without apparent difficulty.
As for Mr. Ovalle’s service records, as the Veterans Court
noted, the VA had in fact assisted Ms. Ovalle in trying to
locate records, and “the reason Ms. Ovalle did not have
those records was because they do not exist, not because
VA failed in its statutory duty to provide them.” S.A. 11.
There was no colorable argument that the VA violated its
statutory duty to assist, nor does Ms. Ovalle establish a col-
orable due process violation.
We have considered Ms. Ovalle’s remaining arguments
and find them unpersuasive.
Because Ms. Ovalle raises no colorable claim of legal
error, we dismiss.
DISMISSED
COSTS
No costs.
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