Ugay v. Shulkin
16-2625
| Fed. Cir. | Oct 6, 2017Background
- Veteran Felimon A. Elacion served in WWII-related Philippine forces, was service-connected for psychosis with 100% rating effective July 6, 1955, and died March 1, 2005.
- Jaime D. Ugay (son-in-law), the veteran’s legal guardian at death, filed for burial benefits in Oct–Dec 2005; VA granted $300 and denied service connection for cause of death (affirmed by Veterans Court in 2010).
- In Nov 2008 Jaime filed for accrued benefits (reimbursement for last sickness and burial); RO denied the claim; Board denied accrued benefits in Nov 2011 as untimely and because no claim was pending at death. Jaime’s appeal to Veterans Court was dismissed for failure to file an opening brief.
- Jaime moved in Dec 2014 to revise the Nov 2011 Board decision based on alleged clear and unmistakable error (CUE); Board denied CUE in June 2015, finding no evidence his earlier submissions sought accrued benefits and that VA satisfied § 3.150(b) by sending the burial application form.
- Veterans Court affirmed the Board in May 2016, rejecting arguments that VA’s failure to send an accrued-benefits form excused the one-year filing rule and that the burial-application was an informal accrued-benefits claim; appeal to this court was reinstated and substituted to the Estate, and Wilfredo E. Ugay (estate representative) appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review Veterans Court factual rulings | Ugay contends Veterans Court erred on facts and law-as-applied; characterizes some issues as constitutional | VA argues this is an application-of-law-to-fact or factual challenge not raising a constitutional question | Court lacked jurisdiction under 38 U.S.C. § 7292(d)(2); appeal dismissed |
| Whether VA’s failure to send an accrued-benefits application under 38 C.F.R. § 3.150(b) excuses untimely filing | Ugay argues VA failed to send required form and thus he should be excused from the one-year filing requirement | VA/Veterans Court: § 3.150(b) obligation attaches only when apparent entitlement exists and applies to dependents; no basis to treat Ugay as dependent | Court treated this as law applied to facts; no jurisdiction to review and Ugay’s legal characterization fails to create jurisdiction |
| Whether the Oct 2005 burial-application constituted an informal claim for accrued benefits | Ugay argues the burial-application was a timely informal accrued-benefits claim | VA/Veterans Court: burial application by non-spouse/child cannot be informal claim for DIC or accrued benefits under applicable regs | Veterans Court’s factual finding supported the Board; appellate court lacked jurisdiction to revisit facts |
Key Cases Cited
- Westberry v. Principi, 255 F.3d 1377 (Fed. Cir. 2001) (VA must send application when there is apparent entitlement, not mere potential)
- Githens v. Shinseki, 676 F.3d 1368 (Fed. Cir. 2012) (Veterans Court did not expand statutory or regulatory meaning in its decision)
- Flores v. Nicholson, 476 F.3d 1379 (Fed. Cir. 2007) (labeling an issue constitutional does not confer jurisdiction if appeal is actually a merits challenge)