Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7038
ROMANA M. DACALDACAL,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Romana M. Dacaldacal, of Poblacion Canlaon City, Negros Oriental, Philippines,
pro se.
Matthew H. Solomson, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney
General; Jeanne E. Davidson, Director; and Kirk T. Manhardt, Assistant Director. Of
counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and
Martie S. Adelman, Attorney, Office of the General Counsel, United States Department
of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7038
ROMANA M. DACALDACAL,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 04-1669, Judge
Robert N. Davis.
___________________________
DECIDED: June 12, 2008
___________________________
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit
Judge.
PER CURIAM.
The United States Court of Appeals for Veterans Claims upheld the denial of Ms.
Romana M. Dacaldacal’s claim for veterans benefits. Because Ms. Dacaldacal
challenges only factual determinations that were before the Veterans Court or the
court’s application of law to the facts of her case, this appeal falls outside this court’s
jurisdiction. This court therefore dismisses her appeal.
I
Ms. Dacaldacal seeks benefits based on the death of her husband, Mr. Margarito
P. Dacaldacal. Ms. Dacaldacal submits that her husband served in the 71st Division of
the Philippine Commonwealth Army during World War II. According to documentation
provided by the Philippines Armed Forces, Mr. Dacaldacal was proclaimed missing in
action and is presumed dead.
In May 1951, based on a November 1947 request by the Manila, Philippines,
Department of Veterans Affairs (VA) regional office (RO), the U.S. Department of the
Army certified that Mr. Dacaldacal did not serve in any recognized guerrilla service or in
the Philippine Commonwealth Army in the service of the Armed Forces of the United
States. Without any recognized military service, the RO denied Ms. Dacaldacal’s claim.
Ms. Dacaldacal renewed her claim for VA benefits in September 1985, submitting
documentation from the Philippines Armed Forces indicating that Mr. Dacaldacal served
with the 71st Division of the Philippines Army during World War II. The RO denied
Ms. Dacaldacal’s renewed claim in July 1990. The RO denied another claim in
February 1991.
In November 1991, the RO requested that the Department of the Army
reexamine its records to determine whether Mr. Dacaldacal had recognized service.
The Department of the Army again certified that Mr. Dacaldacal did not serve in any
recognized guerrilla service or in the Philippine Commonwealth Army in the service of
the Armed Forces of the United States.
In 2000 and 2002, Ms. Dacaldacal filed requests to reopen her previously denied
claims. The RO denied these requests, explaining that the documentation from the
2008-7038 2
Philippines Armed Forces was insufficient without a certification of recognized service
from the U.S. Department of the Army. The appellant timely filed an appeal to the
Board challenging the RO’s refusal to reopen her claims.
Ms. Dacaldacal was subsequently provided notice of the information and
evidence necessary to substantiate her claim for VA benefits in August 2003 under the
Veterans Claims Assistance Act of 2000, 38 U.S.C. § 5103(a). In response to this
notice, Ms. Dacaldacal acknowledged that she did not have additional information or
evidence to support her claim.
Although the VA’s notice was untimely—after, rather than before, the denial of
Ms. Dacaldacal’s requests to reopen her claims—the Board’s June 21, 2004, decision
found that the error was harmless, particularly in light of Ms. Dacaldacal concession that
she could not provide additional evidence to substantiate her husband’s military service.
As such, the Board held that Ms. Dacaldacal was not eligible for VA benefits.
The Veterans Court affirmed the Board’s factual determinations. In its decision,
the court considered Ms. Dacaldacal’s argument that the VA did not provide proper
notice regarding the information and evidence necessary to substantiate her claim as
required under 38 U.S.C. § 5103(a). Applying the notice requirement to the facts of this
case, the court recognized that timing errors can be cured and held that Ms. Dacaldacal
was not prejudiced by the VA’s untimely notice.
Ms. Dacaldacal timely appealed to this court. On appeal, Ms. Dacaldacal
requests reconsideration of Mr. Dacaldacal’s service in the 71st Division of the
Philippines Army during World War for purposes of eligibility for VA benefits.
2008-7038 3
II
This court has limited jurisdiction to review the decisions of the Veterans Court.
38 U.S.C. §7292. As proscribed by 38 U.S.C. § 7292(d)(2), except for constitutional
issues, the Court of Appeals “may not review any challenge to a factual determination or
any challenge to a law or regulation as applied to the facts of a particular case.”
Buchannan v. Nicholson, 451 F.3d 1331, 1334 (Fed. Cir. 2006). This court has also
held that the VA does not err by accepting as conclusive and binding the decision of a
service department to certify, or not to certify, that a Philippine veteran had service
eligible for VA benefits. Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).
This case is indistinguishable from Soria. Thus, the Veterans Court did not err by
affirming the VA’s denial of benefits due to the Army’s decision not to certify Mr.
Dacaldacal’s service, and this court lacks jurisdiction to review the Army’s decision.
Further, this court does not have jurisdiction to find that the evidence establishes eligible
service, or to review the Veterans Court’s application of law to fact in its decision that
the lack of Army certification here is fatal to Ms. Dacaldacal’s claim.
For these reasons, this appeal is dismissed for lack of jurisdiction.
DISMISSED
COSTS
Each party shall bear its own costs.
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