Myrna T. Furnish v. R. JAMES NICHOLSON, Secretary of Veterans Affairs

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-7035
MYRNA T. FURNISH,
Claimant-Appellant,
v.
R. JAMES NICHOLSON,
Secretary of Veterans Affairs
Respondent-Appellee.
______________________________
DECIDED: July 13, 2006
______________________________
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and MAYER, Circuit
Judge.
PER CURIAM.
The appellant challenges the United States Court of Appeals for Veterans Claims
(“Veterans Court”)’s affirmance of the Department of Veterans Affairs (“Department”)’s
refusal to reopen its rejection of her claim that her veteran husband’s death was service
connected, or to assist her in presenting that claim. We dismiss the appeal for lack of
jurisdiction.

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I
Appellant Myrna T. Furnish’s deceased husband, William F. Furnish (“Mr.
Furnish”), twice served on active duty in the Armed Forces between 1946 and 1968. He
died in 1998 of upper gastrointestinal hemorrhage. Mrs. Furnish sought veterans’
compensation, claiming that the death was service-related. She contended that her
husband’s illnesses began in the service in 1964, when he was treated for gastric
distress, and that his death was caused by radiation that he was exposed to during his
service. The Department denied her claims, and the Board of Veterans Appeals
(“Board”) affirmed.
Mrs. Furnish then twice moved the Department’s regional office to reconsider her
claim. The second motion, which was filed in 2001 and is the subject of this appeal,
also sought reopening. She contended that Mr. Furnish’s death was related to
exposure to Agent Orange, and that she was entitled to assistance in proving the claim
under the Veterans Claims Assistance Act of 2000, Pub. L. 106-475, 114 Stat. 2096
(2000) (“Assistance Act”); see 38 U.S.C. § 5103(a). She submitted evidence that Mr.
Furnish participated in the Vietnam War, U.S. Naval Hospital records, and a second
copy of the death certificate. The Department’s regional office denied the motion
because Mrs. Furnish had not submitted “new and material evidence” as required by the
Assistance Act. See 38 U.S.C. §§ 5103A(f), 5108.
The Board affirmed. It ruled that she had not presented any new and material
evidence, and thus that under the Assistance Act, the Department was not required to
assist her in her claim. The board also held that 38 C.F.R. § 3.159(c), which Mrs.
Furnish argued would require the Department to aid her in her reopening claim, see 38
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C.F.R. § 3.159(c)(4)(iii), only applied to claimants who sought reopening after the
regulation’s effective date of August 29, 2001. See 38 C.F.R. §§ 3.159(c)(1)-(3)
(describing the type of assistance the Department should provide when the regulation is
applicable). Because Mrs. Furnish applied on March 12, 2001, those provisions were
inapplicable to her claim.
The Veterans Court affirmed in a single judge order. The court agreed with the
foregoing rulings of the Board.
II
We have held that “in the absence of new and material evidence, [the
Department] is not required to provide assistance to a claimant attempting to reopen a
previously disallowed claim, including providing a medical examination or obtaining a
medical opinion.” Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d
1334, 1342-43 (Fed. Cir. 2003). The Veterans Court upheld the Board’s determination
that Mrs. Furnish had failed to present any “new and material evidence” to support her
claim. Although she challenges that ruling here, it involved “a challenge to” either “a
factual determination” or to “a law or regulation as applied to the facts of a particular
case,” neither of which this court has jurisdiction to review under 38 U.S.C. §
7292(d)(2).
Under that determination of the Board, approved by the Veterans Court, Mrs.
Furnish was not entitled either to a reopening of her claim, or to aid from the
Department under the Assistance Act in presenting it.
This ruling also disposes of Mrs. Furnish’s argument that her right to assistance
was provided by the second sentence of 38 C.F.R. § 3.159(c), which states that the
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Department “will give the assistance described in paragraphs (c)(1), (c)(2), and (c)(3) to
an individual attempting to reopen a finally decided claim.” If, as we have held, Mrs.
Furnish’s failure to present new and material evidence eliminated any obligation by the
Department to assist her in seeking reopening of the claim, the existence of an
alternative basis for that obligation is immaterial. In any event, in adopting that
regulation, the Department stated that it will be applied only “to any claim for benefits
received by [the Department] on or after August 29, 2001 [the regulation’s effective
date].” 66 Fed. Reg. 45,620 (Aug. 29, 2001). Since the Department received Mrs.
Furnish’s claim for benefits before that date, the regulation is inapplicable to her claim.
CONCLUSION
The appeal is dismissed for lack of jurisdiction.
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