Rubia v. Shinseki, 524 F. App'x 707

Background

Ms. Rubia, widow of Antonio Rubia, sought non-service-connected death pension benefits based on her husband’s Philippine Army service; the Board denied in 2003 because the service did not qualify for pension benefits.
NPRC’s May 2007 letter stated Mr. Rubia served in the Philippine Commonwealth Army including guerrillas, but not as active service in the U.S. Army.
Ms. Rubia filed a claim in December 2001; the 2003 Board decision became final.
She sought to reopen in May 2005; the Board denied in November 2005 for lack of new and material evidence.
The Veterans Court vacated and remanded in March 2008 for notice deficiencies; the Board remanded to comply with that decision.
In June 2009 the Board again denied reopening, explaining that pre-1946 Philippine forces did not provide eligibility for VA pension and that Rubia had provided no new, material evidence; she appealed to the Veterans Court, which affirmed the Board.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court has jurisdiction to review the Veterans Court decision	Rubia contends this court should review the Veterans Court’s legal determinations.	Secretary argues the appeal raises no statutory or constitutional issue within our jurisdiction.	Dismissed for lack of jurisdiction.
Whether the Veterans Court or Board interpreted or applied statutes, giving rise to reviewable legal questions	Rubia claims misapplication of 38 U.S.C. § 107 and related rules.	The appeal does not present a challenge to the validity or interpretation of those statutes; it challenges application to facts.	No jurisdiction to review the application of law to facts.
Whether the Board’s finding that Rubia failed to submit new and material evidence was clearly erroneous	Rubia argues the Board erred in reopening or in considering evidence.	The Board’s determination was properly supported by the record and statutory framework.	Not reviewable on the merits due to lack of jurisdiction to review purely factual determinations.
Whether additional documents attached by Rubia must be considered	Rubia attached documents she believes support her claim.	Documents not in the record or not before the Board are not for consideration; some attachments were omitted.	Claims about additional documents were not persuasive; jurisdiction limits bar consideration of new arguments or evidence.
Whether Rubia’s appeal raises a constitutional issue	Rubia suggests constitutional issues related to VA laws.	No constitutional issue identified with specificity.	No constitutional issue shown; review denied.

Key Cases Cited

Rivera v. Principi, 62 F. App’x 942 (Fed. Cir. 2003) (pension entitlement not included under 38 C.F.R. §3.40(c))
Struck v. Brown, 9 Vet. App. 145 (1996) (veteran-status is a question of fact; clearly erroneous standard)
Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999) (Courtmatic to apply VA procedures rules; respect for Board rules)
Harris v. Shinseki, 704 F.3d 946 (Fed. Cir. 2013) (pro se filings are to be read liberally; jurisdictional limits apply)