NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RENE J. ORTEGON,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-1159
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-1889, Chief Judge Robert N.
Davis, Judge Mary J. Schoelen, Judge Coral Wong Pi-
etsch.
______________________
Decided: December 6, 2018
______________________
RENE J. ORTEGON, Del Rio, TX, pro se.
ASHLEY AKERS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., TARA
K. HOGAN; LARA EILHARDT, BRIAN D. GRIFFIN, Office of
2 ORTEGON v. WILKIE
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before WALLACH, TARANTO, and HUGHES, Circuit Judges.
PER CURIAM.
Appellant Rene J. Ortegon appeals the U.S. Court of
Appeals for Veterans Claims’ (“Veterans Court”) memo-
randum decision affirming the final decision of the De-
partment of Veterans Affairs (“VA”) that he was not
eligible for a non-service connected death pension based
on dependency status. Ortegon v. Shulkin (Ortegon I), No.
16-1889, 2017 WL 2791330, at *1 (Vet. App. June 28,
2017); see Ortegon v. Shulkin (Ortegon II), No. 16-1889,
2017 WL 4516649, at *1 (Vet. App. Oct. 10, 2017) (per
curiam) (adhering to Ortegon I, 2017 WL 2791330, at *1
by a three judge panel) see also J.A. 3 (Judgment). Be-
cause we lack jurisdiction, we dismiss.
BACKGROUND
Mr. Ortegon is the adult son of now-deceased U.S.
Army veteran Fernando Ortegon (“the Veteran”). Ortegon
I, 2017 WL 2791330, at *1. 1 In October 2012, Mr. Or-
tegon filed an application with the VA asserting he was
entitled to dependency and indemnity compensation
(“DIC”) or death pension benefits because he was the
Veteran’s caretaker for twenty-three years, was depend-
ent on the Veteran’s Social Security and VA benefits, and
has no current income. Appellee’s App. 11–12. In Janu-
1 Because the parties do not dispute the Veterans
Court’s recitation of the facts, we cite to the Veterans
Court for the relevant background facts. See Ortegon I,
2017 WL 2791330, at *1. See generally Appellant’s Br.;
Appellee’s Br.
ORTEGON v. WILKIE 3
ary 2013, a VA regional office issued a rating decision
denying Mr. Ortegon’s Application. Id. at 13.
Following the 2013 rating decision, Mr. Ortegon as-
serted that he was entitled to benefits based on his al-
leged dependency status as a “helpless child” under 38
U.S.C. § 101(4)(A)(ii) (2012). Ortegon I, 2017 WL
2791330, at *1; see 38 C.F.R. § 3.57(a) (2016). 2 In May
2016, the VA determined Mr. Ortegon did not qualify for
benefits as a “helpless child” because he never contended
that he suffered from any mental or physical disability
before reaching the age of eighteen in 1984, he was able to
attend college at the age of eighteen, and he has been
periodically employed since the age of eighteen. Appel-
lee’s App. 12. The Veterans Court affirmed the VA’s
decision, explaining that the relief Mr. Ortegon sought
“lies with Congress,” not the court. Ortegon I, 2017 WL
2791330, at *1.
2 “Child” is defined in § 3.57(a) and § 101(4)(A) as a
person under the age of eighteen years, who became
permanently incapable of self-support before the age of
eighteen years, or is at an approved educational institu-
tion and has reached the age of eighteen years but is
under the age of twenty-three years. If a person becomes
permanently incapable of self-support before reaching the
age of eighteen, they are considered a “helpless child”
under both § 3.57(a)(1) and § 101(4)(A). See Ortegon I,
2017 WL 2791330, at *1 (“Because Mr. Ortegon is seeking
a pension because of medical problems, the Board [of
Veterans’ Appeals (‘Board’)] examined his status under
the second requirement [of § 101(4)(A)], which is common-
ly referred to as the ‘helpless child’ provision.”).
4 ORTEGON v. WILKIE
DISCUSSION
I. Standard of Review
The scope of our review in an appeal from the Veter-
ans Court “is limited by statute.” Goodman v. Shulkin,
870 F.3d 1383, 1385 (Fed. Cir. 2017). We may “review
and decide any challenge to the validity of any statute or
regulation or any interpretation thereof . . . and . . . inter-
pret constitutional and statutory provisions, to the extent
presented and necessary to a decision.” 38 U.S.C.
§ 7292(c) (2012). “Except to the extent an ap-
peal . . . 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.” Id. § 7292(d)(2). Additionally, “pro se
pleadings are to be liberally construed.” Durr v. Nichol-
son, 400 F.3d 1375, 1380 (Fed. Cir. 2005) (citing Hughes v.
Rowe, 449 U.S. 5, 9–10 (1980)).
II. We Lack Jurisdiction over Mr. Ortegon’s Appeal
Mr. Ortegon appears to assert that the Veterans
Court erred by not awarding him a death pension under
dependency and survivorship because he was the sole
caretaker of the Veteran for twenty-three years. See
Appellant’s Br. 1. Specifically, Mr. Ortegon contends that
he should be awarded a non-service connected death
pension plus six years back pay with cost of living ad-
justments because of his current hardship. See id. We
disagree.
Mr. Ortegon fails to present a legal or constitutional
challenge to the Veterans Court’s Memorandum Decision.
For instance, Mr. Ortegon responded to questions asking
him to identify what legal provisions were violated by
saying “please be more specific.” Id. (capitalization modi-
fied). The Veterans Court ultimately affirmed the VA’s
Final Decision based on the application of § 3.57(a)’s
definition of a “helpless child” to Mr. Ortegon’s factual
ORTEGON v. WILKIE 5
circumstances, finding he is not a “helpless child” eligible
to receive DIC or death pension benefits because he was
not permanently disabled before reaching the age of
eighteen. Ortegon I, 2017 WL 2791330, at *1; see Perry v.
McDonald, 578 F. App’x 985, 986 (Fed. Cir. 2014) (per
curiam) (finding we lacked jurisdiction where a child of a
deceased veteran failed to challenge the validity, scope, or
constitutionality of a statute, but rather only contested
the factual determinations of the Board and the applica-
tion of the law to those facts). Mr. Ortegon does not
identify any error in the Veterans Court’s interpretation
of § 3.57(a) or § 101(4)(A), see generally Appellant’s Br.,
but instead argues he is entitled to “survivor’s pension”
based on “dependency/survivorship,” id. at 1; see id.
(explaining that Mr. Ortegon is “requesting a death
pension under dependency/survivorship not entitlement
to recognition as a helpless child” (capitalization modi-
fied)). Accordingly, we lack jurisdiction over Mr. Or-
tegon’s factual challenge. See Wanless v. Shinseki, 618
F.3d 1333, 1336 (Fed. Cir. 2010) (citing § 7292 to explain
that we lack jurisdiction to review challenges to a factual
determination or challenges to a law or regulation as
applied to the facts).
In affirming the denial of Mr. Ortegon’s claim, the
Veterans Court stated that, while it is “sympathetic to
Mr. Ortegon’s situation, the power to redress inequities
such as those Mr. Ortegon raises lies with Congress.”
Ortegon I, 2017 WL 2791330, at *1; see Office of Pers.
Mgmt. v. Richmond, 496 U.S. 414, 426 (1990) (stating
that no equitable considerations can create a right to
payments out of the U.S. Department of the Treasury that
have not been provided by Congress). While we would
have jurisdiction over a constitutional claim, Mr. Ortegon
fails to raise one. See generally Appellant’s Br. Instead,
Mr. Ortegon simply asserts, without supporting evidence,
that he is entitled to a “survivor’s pension” because he is
the adult child of a veteran. See id. at 1. Although this
6 ORTEGON v. WILKIE
court generally interprets the pleadings of a pro se appel-
lant liberally, see, e.g., Durr, 400 F.3d at 1380, an appel-
lant’s pro se status “does not excuse [the pleadings’]
failures,” Henke v. United States, 60 F.3d 795, 799 (Fed.
Cir. 1995). Therefore, Mr. Ortegon’s allegations do not
raise a constitutional issue within our jurisdiction.
CONCLUSION
We have considered Mr. Ortegon’s remaining argu-
ments and find them unpersuasive. The appeal from the
Judgment of the U.S. Court of Appeals for Veterans
Claims is
DISMISSED
Ortegon v. Wilkie
Combined Opinion