Brandi L. Spain v. Eric K. Shinseki, SECRETARY OF VETERANS AFFAIRS

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRANDI L. SPAIN,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7161
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1833, Judge William P. Greene
Jr.
______________________
Decided: May 13, 2013
______________________
BRANDI L. SPAIN, of Fort Worth, Texas, pro se.
MELISSA M. D EVINE, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were STUART F. D ELERY , Acting
Assistant Attorney General, J EANNE E. D AVIDSON, Direc-
tor, T ODD M. H UGHES , Deputy Director. Of counsel on the
brief were D AVID J. BARRANS , Deputy Assistant General

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BRANDI SPAIN v. SHINSEKI 2
Counsel, and L ARA K. EILHARDT , Attorney, United States
Department of Veterans Affairs, of Washington, DC.
______________________
Before RADER, Chief Judge, CLEVENGER , and P ROST ,
Circuit Judges.
P ER CURIAM .
Brandi L. Spain appeals from a memorandum deci-
sion of the United States Court of Appeals for Veterans
Claims (“Veterans Court”) affirming a decision of the
Board of Veterans Appeals (“Board”) denying her claim
for benefits under 38 U.S.C. §§ 1805 and 1815. Because
we are without appellate jurisdiction to review the Veter-
ans Court’s determinations of fact and its application of
law to the facts of Ms. Spain’s case—the only issues raised
here—we dismiss the appeal.
BACKGROUND
Ms. Spain is the daughter of Connell Spain, a veteran
who served in the U.S. Air Force from April 1970 to
February 1975. Between 1973 and 1975, Mr. Spain
served for 422 days in Thailand. Ms. Spain’s mother,
Peggy Spain, is not a veteran and has not served in the
U.S. Armed Forces.
Ms. Spain was born in December 1986, and was diag-
nosed with ulcerative colitis in October 2004. In June
2005, she filed a claim for benefits with the Spina Bifida
Processing Center at the Denver Veterans Affairs Region-
al Office (“RO”), the office designated by the Department
of Veterans Affairs (“VA”) for handling all such claims.
Ms. Spain asserted that her ulcerative colitis was a birth
defect, which resulted from her father’s exposure to Agent
Orange and other chemicals while he was stationed in
Vietnam. Upon a thorough review of the evidence and
statements submitted by Ms. Spain, as well as the records
supplied by various administrative offices, the RO denied

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BRANDI SPAIN v. SHINSEKI 3
her claim for benefits under 38 U.S.C. §§ 1805 (child of a
Vietnam veteran born with spina bifida) and 1815 (child
with birth defects born of a mother who is a Vietnam
veteran) in February 2006. The RO determined that (1)
neither of Ms. Spain’s parents served in the Republic of
Vietnam, (2) Ms. Spain had not been diagnosed with
spina bifida, and (3) ulcerative colitis, the condition Ms.
Spain suffers from, is not a qualifying birth defect for
purposes of § 1815.
Ms. Spain appealed the RO’s determination to the
Board, which reached the same conclusions as the RO.
The Board found that Ms. Spain failed to meet the legal
criteria for the benefits she was seeking, because she
could not establish that she suffered from spina bifida or
a qualifying birth defect, and the record reflects that
neither of her parents served in Vietnam. The Board
additionally found that, by requesting and reviewing
service records from the National Personnel Records
Center, the RO complied with its duty to assist claimants
for benefits to obtain evidence to substantiate a claim
under 38 U.S.C. § 5103A. Ms. Spain then appealed the
Board’s April 27, 2011 decision to the Veterans Court,
which affirmed the Board’s decision that she was ineligi-
ble for §§ 1805 and 1815 benefits and denied Ms. Spain’s
appeal. On August 7, 2012, the Veterans Court entered
judgment. Ms. Spain timely appealed to this court.
D ISCUSSION
This court’s review of Veterans Court decisions is
strictly limited by statute. Under 38 U.S.C. § 7292(a), we
may review “the validity of a decision of the [Veterans]
Court on a rule of law or of any statute or regulation . . .
or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the [Veter-
ans] Court in making the decision.” We review a statuto-
ry interpretation by the Veterans Court de novo. Cayat v.
Nicholson, 429 F.3d 1331, 1333 (Fed. Cir. 2005). Howev-

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BRANDI SPAIN v. SHINSEKI 4
er, we may not review findings of fact or application of
law to the facts, except to the extent that an appeal
presents a constitutional issue. 38 U.S.C. § 7292(d)(2).
To the extent we have jurisdiction, we set aside Vet-
erans Court interpretations only when they are arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; contrary to constitutional right,
power, privilege, or immunity; in excess of statutory
jurisdiction, authority, or limitations, or in violation of a
statutory right; or without observance of procedure re-
quired by law. 38 U.S.C. § 7292(d)(1).
Giving Ms. Spain’s extensive informal briefing the
broadest latitude, we identify two issues as constituting
Ms. Spain’s bases for this appeal: (1) the Veterans Court
erroneously interpreted 38 U.S.C. §§ 1805 and 1815 to
require service in the Republic of Vietnam because service
in Indochina should be sufficient; and (2) the Veterans
Court misinterpreted 38 U.S.C. § 5103A by affirming the
Board’s decision that the VA has fulfilled its duty to assist
Ms. Spain in obtaining evidence necessary to substantiate
her claim.
With respect to the first issue on appeal, under 38
U.S.C. § 1805, the VA will pay benefits to “any child of a
Vietnam veteran for any disability resulting from spina
bifida suffered by such child.” Under 38 U.S.C. § 1815, a
child may receive benefits if its biological mother is a
Vietnam veteran and the child suffers from “any disability
resulting from [one of several listed] birth defects.” For
both sections, the term “Vietnam veteran” is defined to be
“an individual who performed active military, naval, or
air service in the Republic of Vietnam during the Vietnam
era, without regard to the characterization of that indi-
vidual’s service.” 38 U.S.C. § 1831(2).
Applying the established law to the facts of Ms.
Spain’s case, the Veterans Court found Ms. Spain to be
ineligible for benefits because she was not a child of a

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BRANDI SPAIN v. SHINSEKI 5
“Vietnam veteran,” and her veteran father’s time spent in
Thailand does not constitute service in the “Republic of
Vietnam.” Although Ms. Spain has attempted to create
an issue of statutory interpretation here, the challenged
findings by the Veterans Court are factual in nature and
do not involve the interpretation of statutes. As such, Ms.
Spain has failed to raise an issue reviewable by this court.
With respect to the second issue on appeal,
38 U.S.C. § 5103A(a)(1) requires the VA to “make reason-
able efforts to assist a claimant in obtaining evidence
necessary to substantiate the claimant’s claim for a
benefit . . . .” However, 38 U.S.C. § 5103A(a)(2) provides
that such assistance “is not required . . . if no reasonable
possibility exists that [it] would aid in substantiating the
claim.” Applying these provisions to the facts of this case,
the Veterans Court found that the VA satisfied its duty to
assist Ms. Spain when it submitted requests for infor-
mation with the relevant records centers to review Ms.
Spain’s veteran father’s files and found that they con-
tained no evidence of any service in Vietnam. Here,
because Ms. Spain challenges the Veterans Court’s appli-
cation of law to the facts of her case and not its interpre-
tation of 38 U.S.C. § 5103A, we are again without
appellate jurisdiction to consider the issue.
Accordingly, because we may not review these types of
challenges, we dismiss Ms. Spain’s appeal for lack of
appellate jurisdiction.
DISMISSED
COSTS
Each party shall bear its own costs.

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