Angela Goldman Selby v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANGELA GOLDMAN SELBY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1066
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-5763, Judge Joseph L. Falvey,
Jr.
______________________
Decided: May 7, 2024
______________________
ANGELA G. SELBY , Carthage, TX, pro se.
N ATALEE A. ALLENBAUGH , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY , J R.,
P ATRICIA M. MC CARTHY .
______________________
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SELBY v. MCDONOUGH 2
Before L OURIE, P ROST , and STARK, Circuit Judges.
P ER CURIAM .
Angela Goldman Selby appeals from a decision of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”) affirming a Board of Veterans’ Appeals
(“Board”) decision denying her an increased share of her
late father’s accrued Department of Veterans Affairs (“VA”)
disability benefits under the provisions of 38 C.F.R.
§ 3.816. See Selby v. McDonough, No. 22-5763, 2023 WL
5746882 (Vet. App. Sept. 6, 2023) (“Decision”). We affirm.
BACKGROUND
Selby is the adult daughter of Navy veteran James D.
Goldman, who served honorably from June 1965 to August
1969. Decision at *1; Resp. Br. at 2. In June 2020, Gold-
man died of kidney failure secondary to bladder cancer.
Resp. Br. at 2−3. Goldman is survived by Selby, as well as
three other adult children. R.A.1 26.
In 2021, Congress added bladder cancer to the list of
conditions presumptively associated with exposure to herb-
icide agents. See 38 U.S.C. § 1116(a)(2)(J). In June 2022,
a VA regional office (“RO”) issued a decision awarding
Goldman service connection under the Nehmer consent de-
cree for the purpose of retroactive benefits for bladder can-
cer associated with herbicide exposure. R.A. 9−20; see also
Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175, 1177
(N.D. Cal. 1999) (describing the consent decree). The RO
granted service connection with a 100 percent evaluation
effective from November 29, 2006 to April 30, 2007, as well
as a 100 percent evaluation from January 8, 2008 until his
death in 2020. R.A. 21−24. The VA notified Selby that her
father was entitled to retroactive benefits of $276,505.02
1 “R.A.” refers to the appendix filed with Respond-
ent’s Brief.
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SELBY v. MCDONOUGH 3
and that she and her three siblings would each receive a
one-fourth share of $69,125.25. Id.
Selby submitted a timely Notice of Disagreement, al-
leging that she had been her father’s only caregiver and
that, based on her father’s will, the retroactive benefits
should not be divided equally, but instead, paid “mostly, if
not all,” to her. R.A. 25.
In a September 21, 2022 decision, the Board denied
Selby entitlement to an increased share of accrued bene-
fits. R.A. 26−31. As explained by the Board, the “provi-
sions of 38 C.F.R. § 3.816 set forth the class members who
may be considered for awards under the Nehmer court or-
ders and govern the payment of benefits to survivors or es-
tates of deceased beneficiaries.” Id. at 28. That regulation
sets forth a sequential order in which retroactive benefits
are to be paid out upon the death of the veteran entitled to
such benefits. First, the veteran’s spouse, and next, “the
class member’s child(ren) regardless of age or marital sta-
tus (i.e., natural and adopted children and any stepchil-
dren who were members of the class member’s household
at the time of his death).” Id. at 29; see 38 C.F.R.
§ 3.816(f)(i)−(ii).
The Board identified that Goldman had three biological
children and one adopted child. R.A. 29. The Board further
noted that 38 C.F.R. § 3.816(f)(1)(ii) holds that “if more
than one child exists, payment will be made in equal shares
[to each child].” R.A. 29 (alteration in original). The Board
concluded that the law does not allow the VA to restrict
payment of retroactive accrued Nehmer benefits only to
certain children “regardless of [a] will or the caretaking re-
sponsibilities the respective children undertook.” Id. at 30.
The Veterans Court affirmed that decision. Selby ap-
pealed.
D ISCUSSION
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SELBY v. MCDONOUGH 4
Our jurisdiction to review decisions of the Veterans
Court is governed by 38 U.S.C. § 7292. We review legal de-
terminations, including questions of statutory and regula-
tory interpretation, de novo. Andre v. Principi, 301 F.3d
1354, 1358 (Fed. Cir. 2002). Absent a constitutional issue,
we may not review a challenge to a factual determination
or a challenge to a law or regulation as applied to the facts
of a particular case. 38 U.S.C. § 7292(d)(2); Wanless v.
Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010).
The core issue in Selby’s appeal is whether or not the
Veterans Court erred in affirming the Board’s decision that
accrued benefits had to be equally split between Goldman’s
four children. Decision at *1. To the extent that Selby ar-
gues that an error arose due to a misinterpretation of
38 C.F.R. § 3.816, we have jurisdiction to decide the issue
under 38 U.S.C. § 7292(a). However, Selby has not alleged
any specific error on the part of the Veterans Court in in-
terpreting that regulation, and we do not see an error in its
analysis.
As the Veterans Court correctly recognized, “a valid
regulation governs the distribution of accrued benefits,”
and “under this regulation, VA was required to distribute
benefits to surviving children without regard to what state
law or a will had to say about the matter.” Decision at *1−2
(citing Morris v. Shinseki, 26 Vet. App. 494, 508−09 (2014)
(holding that when a federal statute or regulation ex-
pressly covers the distribution of VA benefits, it displaces
the state law governing the division of property)). Federal
law thus required the VA to distribute the funds to Gold-
man’s four children in equal shares under 38 C.F.R.
§ 3.816(f) and the VA complied with that law.
Selby also appears to argue that, because she re-
quested to be substituted as claimant upon her father’s
death and was the sole beneficiary of his will, the VA
should have treated her as if she was her father’s only child
for the purposes of § 3.816. See Appellant’s Inf. Br. at 1.
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SELBY v. MCDONOUGH 5
But we lack jurisdiction to review such a claim contesting
the law as applied to the particular facts of Selby’s case.
See 38 U.S.C. § 7292(d)(2).
Relatedly, Selby argues that she should be substituted
into her father’s case, stating that “38 C.F.R. § 3.816 was
amended by Congress in 2008 to allow substitution in any
case where a veteran dies on or after the Modernization Act
of 2008 was passed into law.” Appellant’s Inf. Br. at 1. She
further contends that she “meet[s] all requirements to be
considered as a substitution,” noting that she filed VA
Form 21P-0847, which is the form used for substitution of
a claimant upon death of the original claimant, wherein
that death occurs before the VA finishes processing a VA
claim, decision review, or appeal. Id.
But Selby does not appear to have raised an argument
regarding substitution before the Veterans Court and we
therefore do not have a decision as to substitution to review
on appeal. We thus decline to consider such an argument
under Boggs v. West, 188 F.3d 1335, 1337 _ 38 (Fed. Cir.
1999). But even if Selby were to be substituted into the
case, such substitution would not displace the distributions
set forth in § 3.816. Substitution grants an eligible ac-
crued-benefits claimant only the opportunity to “process[]
the claim to completion” in the deceased veteran’s stead.
35 U.S.C. § 5121A(a)(1). It does not affect the way in which
accrued benefits are to be distributed once a decision as to
those benefits has been reached.
Selby further seems to argue that the RO erred in find-
ing a period of time, specifically, May 1, 2007 to January 7,
2008, non-compensable. Appellant’s Inf. Br. at 2. In par-
ticular, Selby contends that during that time, Goldman un-
derwent multiple medical procedures relating to his
bladder cancer and should have been compensated for that
time frame. Id. However, Selby does not appear to have
adequately raised that argument below, which puts it out-
side the scope of what is ordinarily appealable under
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SELBY v. MCDONOUGH 6
38 U.S.C. § 7292(a). See also Emenaker v. Peake, 551 F.3d
1332, 1337 (Fed. Cir. 2008) (“[A]ppellate courts do not con-
sider issues that were not raised in the tribunal from which
the appeal is taken”). We see no reason to diverge from
that ordinary practice here.
CONCLUSION
We have considered Selby’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm.
AFFIRMED
COSTS
No costs.
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