Rosario Rances Rubia v. Eric K. Shinseki, SECRETARY OF VETERANS AFFAIRS

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROSARIO RANCES RUBIA,
Claimant-Appellant,
v.
Eric K. Shinseki,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
______________________
2012-7155
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-2865, Judge Mary J. Schoelen.
______________________
Decided: May 13, 2013
______________________
ROSARIO RANCES RUBIA, San Francisco, Tigaon, Phil-
ippines, pro se.
D ANIEL RABINOWITZ, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were STUART F. D ELERY,
Acting Assistant Attorney General, J EANNE E. D AVIDSON,
Director, and STEVEN J. G ILLINGHAM , Assistant Director.

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ROSARIO RUBIA v. SHINSEKI 2
Of counsel on the brief were MICHAEL J. T IMINSKI, Deputy
Assistant General Counsel, and CHRISTINA L. G REGG,
Attorney, United States Department of Veterans Affairs,
of Washington, DC. Of counsel was CHRISTA A. SHRIBER.
______________________
Before N EWMAN, P LAGER, and O'MALLEY , Circuit Judges.
P ER CURIAM .
Rosario Rances Rubia (“Ms. Rubia”) appeals from the
decision of the Court of Appeals for Veterans Claims
(“Veterans Court”) affirming a Board of Veterans Appeals
(“the Board”) decision which found that she did not sub-
mit new and material evidence sufficient to reopen her
claim for entitlement to non-service-connected death
pension benefits. Rubia v. Shinseki, No. 09-2865, 2012
U.S. App. Vet. Claims LEXIS 71 (Vet. App. Jan. 18, 2012)
(“Vet. Ct. Op.”). Because Ms. Rubia’s appeal does not
raise a legal or constitutional issue falling within this
court’s jurisdiction, we dismiss.
BACKGROUND
Ms. Rubia is the widow of Antonio Zape Rubia (“Mr.
Rubia”). According to a May 2007 letter from the Nation-
al Personnel Records Center (“NPRC”), Mr. Rubia “served
as a member of the Philippine Commonwealth Army,
including recognized guerrillas, in the service of the
Armed Forces of the United States . . . from September 1,
1941 to June 30, 1946, the date of discharge.” Vet. Ct.
Op., 2012 U.S. App. Vet. Claims LEXIS 71, at *1-2. The
NPRC letter stated that Mr. Rubia’s service “is not con-
sidered as active service in the United States Army.” Id.
at *2. Mr. Rubia died in December 1982. Rubia v. Peake,
No. 06-1179, 2008 U.S. App. Vet. Claims LEXIS 354, *2
(Vet. App. Mar. 28, 2008).
Ms. Rubia filed a claim for compensation benefits with
the Department of Veterans Affairs (“VA”) in December

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ROSARIO RUBIA v. SHINSEKI 3
2001. Id. In December 2003, the Board found that Ms.
Rubia was not entitled to receive non-service-connected
death pension benefits because she did not meet the
statutory eligibility requirements based on her husband’s
military service. See Vet. Ct. Op., 2012 U.S. App. Vet.
Claims LEXIS 71, at *13 (noting that the Board cited 38
U.S.C. § 107 and 38 C.F.R. § 3.40 in reaching its decision).
Ms. Rubia did not appeal that decision and it became
final.
Ms. Rubia sought to reopen her claim in May 2005.
The Board denied her request in November 2005, on
grounds that she failed to submit new and material
evidence. Id. at *2. In March 2008, the Veterans Court
vacated the Board’s decision and remanded for further
proceedings in light of the Secretary of Veterans Affairs’
(“the Secretary”) concession that the VA failed to give Ms.
Rubia adequate notice of the types of evidence needed to
substantiate her claim. See Rubia, 2008 U.S. App. Vet.
Claims LEXIS 354, at *3-6.
The Board remanded the case to the VA to comply
with the Veterans Court’s decision, and, in March 2009,
the VA regional office denied Ms. Rubia’s request to
reopen her claim. Vet. Ct. Op., 2012 U.S. App. Vet.
Claims LEXIS 71, at *3. In a decision dated June 12,
2009, the Board again found that Ms. Rubia failed to
submit new and material evidence sufficient to reopen her
claim for benefits. In that decision, the Board noted that:
(1) in December 2008, the VA gave Ms. Rubia notice of the
evidence necessary to reopen her claim and establish
entitlement to the benefits sought; (2) the VA explained to
Ms. Rubia that “the RO previously denied [her] claim as
the Veteran’s Philippine Army service was not considered
‘active military service’ for purposes of VA death pension
benefits”; and (3) in January 2009, Ms. Rubia “indicated
that she had no other information or evidence to give to
substantiate her claim.” Appendix 15. The Board ex-
plained that service prior to July 1, 1946 in the organized

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ROSARIO RUBIA v. SHINSEKI 4
military forces of the Government of the Commonwealth
of the Philippines, including guerrilla service, is qualify-
ing service “for compensation, dependency, indemnity
compensation, and burial allowance . . . [but] it is not
qualifying service for VA pension benefits.” Id. at 17
(citing 38 U.S.C. § 107 and 38 C.F.R. § 3.40). Because Ms.
Rubia provided no new and material evidence showing
that her husband had the type of service that would
confer eligibility for non-service-connected death pension
benefits, the Board concluded that her claim could not be
reopened. Ms. Rubia appealed this decision to the Veter-
ans Court.
Before the Veterans Court, Ms. Rubia argued, among
other things, that the Board failed to consider three
letters that she received from the VA. The Veterans
Court indicated that two of the letters were not in the
record and that it had previously found, in a separate
order, that “the Secretary did not err in not including
these documents in the record based on his assertion that
they do not exist.” Vet. Ct. Op., 2012 U.S. App. Vet.
Claims LEXIS 71, at *8. The Veterans Court found no
prejudicial error in the Board’s failure to discuss the third
letter, which was in the record, because the letter simply
stated “that the RO received her application for benefits,
that the application was being processed, and that a
decision would be issued as quickly as possible.” Id. at *8-
9.
Ms. Rubia attached a number of documents to her
briefing before the Veterans Court. In response to these
submissions, the Veterans Court: (1) noted that several of
the letters attached – including certification of Mr. Ru-
bia’s service – were already in the record; and (2) declined
to consider other documents on grounds that they were
not before the Board when it rendered its decision. Id. at
*5 (citing 38 U.S.C. § 7252(b) (precluding the Court from
considering any material that was not contained in the

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ROSARIO RUBIA v. SHINSEKI 5
“record of proceedings before the Secretary and the
Board”)).1
Turning to the merits, the Veterans Court found that
Ms. Rubia failed to demonstrate that the Board’s decision
was clearly erroneous or that its decision was unsupport-
ed. At the outset, the court noted that Ms. Rubia did “not
cite specific laws or regulations that she feels the Board
inappropriately applied.” Id. at *9. Instead, she “appears
to read the December 2003 Board decision as denying her
claim based on her failure to prove Mr. Rubia’s service,
and endeavors to have her claim reopened based on her
submission of new and material evidence establishing his
service.” Id. at *10. Because Ms. Rubia presented no
evidence contradicting the Board’s determination that her
husband’s service did not qualify for pension benefits, and
because she did not argue that the relevant statute – 38
1 Although Ms. Rubia attempted to assert new ar-
guments after the Secretary submitted the record in this
case, the Veterans Court declined to consider them on
grounds that they were untimely. See Vet. Ct. Op., 2012
U.S. App. Vet. Claims LEXIS 71, at *4-5 (citing Rule
31(a)(3) of the Court’s Rules of Practice and Procedure
and noting that the Secretary’s brief was submitted on
June 10, 2010, and Ms. Rubia submitted new arguments
in September 2010, long after the fourteen day window for
filing a reply brief had passed). The Veterans Court’s
enforcement of its procedural rules is entitled to defer-
ence, and we see no error in the court’s application of its
rules. See Carbino v. West, 168 F.3d 32, 35 (Fed. Cir.
1999) (“Congress has provided the Court of Veterans
Appeals the express authority to promulgate its rules,
practice and procedure, see 38 U.S.C. § 7264(a), and it is
appropriate for the Court of Veterans Appeals to have
discretionary authority to apply its rules as other courts
of appeals.”) (citation omitted)).

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ROSARIO RUBIA v. SHINSEKI 6
U.S.C. § 107 – was somehow inapplicable to her case, the
Veterans Court found no error in the Board’s decision. Id.
at *16. Ms. Rubia timely appealed to this court.
D ISCUSSION
Our review of Veterans Court decisions is strictly lim-
ited 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 Court in making
the decision.” Unless the appeal presents a constitutional
issue, we “may not 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).
Pursuant to 38 U.S.C. § 1541(a), the surviving spouse
of a veteran who meets the service requirements set forth
in 38 U.S.C. § 1521(j) is eligible to receive non-service-
connected pension benefits.2 A “veteran” is defined as a
person who “served in the active military, naval, or air
service, and who was discharged or released therefrom
2 Section 1521(j) provides that a veteran meets the
service requirements if the veteran:
served in the active military, naval, or air service
– (1) for ninety days or more during a period of
war; (2) during a period of war and was dis-
charged or released from such service for a ser-
vice-connected disability; (3) for a period of ninety
consecutive days or more and such period began
or ended during a period of war; or (4) for an ag-
gregate of ninety days or more in two separate pe-
riods of service during more than one period of
war.
38 U.S.C. § 1521(j).

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ROSARIO RUBIA v. SHINSEKI 7
under conditions other than dishonorable.” 38 U.S.C.
§ 101(2). Under 38 U.S.C. § 107(a), service before July 1,
1946 in the “organized military forces of the Government
of the Commonwealth of the Philippines,” including
organized guerrilla forces, “shall not be deemed to have
been active military, naval, or air service” for the purpose
of conferring pension benefits. See 38 C.F.R. § 3.40(c)
(providing that persons who served in the Commonwealth
Army of the Philippines are entitled to receive “compensa-
tion, dependency and indemnity compensation, and burial
allowance”); see also Rivera v. Principi, 62 F. App’x 942,
945 (Fed. Cir. 2003) (noting that pension benefits are not
included in 38 C.F.R. § 3.40(c)).
Here, the Board found that Ms. Rubia failed to submit
new and material evidence sufficient to reopen her claim
for non-service-connected pension benefits, and the Veter-
ans Court agreed. On appeal, Ms. Rubia states that she
“absolutely disagree[s] to the issuance of the affirmation
of the BVA or Board’s Decision, dated June 12, 2009”
because it is “purely incorrect.” Informal Br. ¶ 4. She
then asks this court to “extend to [her] the favorable
verdict in consonance with the submitted Military Service
Records derived from the rendered service during WWII
in the Philippines, as shown in the records and also about
the Honorable Discharge of the deceased veteran, etc.”
Id. at ¶ 6.
In response, the Secretary argues that we should dis-
miss Ms. Rubia’s appeal on grounds that it fails to “raise
any issue concerning the validity or interpretation of any
statute, regulation, or rule of law relied upon by the
Veterans Court that could provide a basis for this Court’s
jurisdiction.” Appellee’s Br. 8-9. In the alternative, the
Secretary submits that we should affirm the Veterans
Court’s decision. For the reasons explained below, be-
cause Ms. Rubia raises no legal or constitutional issues on
appeal, we dismiss.

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ROSARIO RUBIA v. SHINSEKI 8
In her informal brief, Ms. Rubia answered “no” to the
question of whether the Veterans Court’s decision in-
volved the validity or interpretation of a statute or regula-
tion.3 As was the case before the Veterans Court, it seems
that Ms. Rubia continues to believe that the denial of
pension benefits was based on a failure to prove Mr.
Rubia’s military service. To the contrary, the Board
specifically found that Mr. Rubia served as a member of
the Philippine Commonwealth Army, including with
recognized guerrillas, in the service of the Armed Forces
of the United States from September 1, 1941 until June
30, 1946. The Board found, however, that Mr. Rubia’s
service was not active military service for the purpose of
conferring pension benefits and that she failed to submit
new and material evidence sufficient to reopen her claim
for entitlement to those benefits. Because Ms. Rubia
3 In response to this question, Ms. Rubia “respect-
fully request[s] extension of assistance, that [she] should
be allowed to offer written manifestation regarding this
matter for enlightenment.” Informal Br. ¶ 2. Before the
Veterans Court, Ms. Rubia argued that she “proceeded
throughout the pendency of her claim without the benefit
of legal representation” and that “this is ‘a neglect’ by the
RO.” Vet. Ct. Op., 2012 U.S. App. Vet. Claims LEXIS 71,
at *6. The Veterans Court found that the VA repeatedly
informed Ms. Rubia of her options for obtaining counsel
and specifically concluded that there was “no evidence of
neglect on the part of VA.” Id. at *7-8. We find no evi-
dence in the record that the Veterans Court or the Board
denied Ms. Rubia the opportunity to obtain legal counsel.
And, to the extent Ms. Rubia’s request for “extension of
assistance” can be interpreted as a request that this court
appoint legal representation, it is denied, as we generally
do not appoint counsel on appeal and we see no grounds
for doing so here. Likewise, Ms. Rubia’s request to file an
additional “written manifestation” is denied.

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ROSARIO RUBIA v. SHINSEKI 9
“offer[ed] no evidence casting doubt on the Board’s de-
scription of Mr. Rubia’s service,” the Veterans Court
found no error in the Board’s decision. Vet. Ct. Op., 2012
U.S. App. Vet. Claims LEXIS 71, at *16.
On appeal, Ms. Rubia does not allege that the Veter-
ans Court’s decision was based on an incorrect interpreta-
tion of either 38 U.S.C. § 107 or 38 C.F.R. § 3.40. Indeed,
the Veterans Court did not interpret or rule on the validi-
ty of any statute or regulation. Instead, the sole issue
before the Veterans Court was whether the Board’s de-
termination that Ms. Rubia had not submitted new and
material evidence was “either clearly erroneous or not
supported by an adequate statement of reasons or bases.”
See Vet. Ct. Op., 2012 U.S. App. Vet. Claims LEXIS 71, at
*16-17. Because the Veterans Court simply applied the
controlling law to the facts, and because we are unable to
review the application of that law to these particular
facts, we lack jurisdiction. And, as the Secretary points
out, to the extent Ms. Rubia continues to allege that her
husband qualified as a veteran with active military ser-
vice, that is a factual determination we lack jurisdiction
to review. See Struck v. Brown, 9 Vet. App. 145, 152-53
(1996) (indicating that the Board’s determination of
veteran status is a question of fact subject to the “clearly
erroneous” standard of review).
Next, Ms. Rubia argues that the Veterans Court failed
to consider certain documents in reaching its decision.
Specifically, Ms. Rubia attaches two documents to her
informal brief. The first is a proclamation from the for-
mer President of the Philippines publishing President
Roosevelt’s July 26, 1941 military order which provided
that members of the Philippine military forces were
eligible for certain benefits from the United States.
Although this military order is referenced in 38 U.S.C.
§ 107,4 as previously indicated, Ms. Rubia has not argued
4 Section 107(a) provides that:

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ROSARIO RUBIA v. SHINSEKI 10
that the Veterans Court misinterpreted any statute or
regulation in affirming the Board’s decision, and does not
explain how she thinks this document supports her claim.
Ms. Rubia also attached a January 2001 Social Security
Administration publication discussing special benefits for
certain World War II veterans. Because Ms. Rubia fails
to explain how these documents are relevant to the Veter-
ans Court’s decision, we need not address them further.
Finally, although Ms. Rubia answered “yes” to the
question of whether the Veterans Court decided constitu-
tional issues, she neither cited any constitutional provi-
sion nor identified the issue alleged. Instead, in her
written explanation Ms. Rubia: (1) indicates that there
were “omissions of the proofs of marked exhibits in evi-
dence”; and (2) includes a vague mention of “VA Laws”
along with a string of citations to pages within the record
before the agency. Informal Br. ¶ 3. While we are cer-
tainly mindful that “pro se filings must be read liberally,”
Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013)
(citations omitted), Ms. Rubia’s failure to make any
specific allegations regarding a constitutional violation
precludes our review of that claim.
CONCLUSION
Because we conclude that this appeal does not raise
any issues within our jurisdiction, we dismiss.
Service before July 1, 1946, in the organized mili-
tary forces of the Government of the Common-
wealth of the Philippines, while such forces were
in the service of the Armed Forces of the United
States pursuant to the military order of the Presi-
dent dated July 26, 1941 . . . shall not be deemed
to have been active military, naval, or air service .
. . .
38 U.S.C. § 107(a).

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ROSARIO RUBIA v. SHINSEKI 11
DISMISSED
COSTS
No costs.

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