NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DORADO P. RIDGELL,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-2334
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-680, Judge William S. Green-
berg.
______________________
Decided: January 9, 2019
______________________
DORADO P. RIDGELL, Maumelle, AR, pro se.
ERIC LAUFGRABEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also repre-
sented by JOSEPH H. HUNT, MARTIN F. HOCKEY, JR.,
ROBERT EDWARD KIRSCHMAN, JR.; CHRISTINA LYNN GREGG,
BRIAN D. GRIFFIN, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
2 RIDGELL v. WILKIE
______________________
Before LOURIE, O’MALLEY, and TARANTO, Circuit Judges.
PER CURIAM.
Dorado P. Ridgell appeals from the final decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”), which affirmed a decision by the
Board of Veterans’ Appeals (“the Board”) denying service-
connected compensation for accrued benefits and an
earlier effective date for non-service-connected pension
benefits. Ridgell v. O’Rourke, No. 17-0680, 2018 WL
2451829, at *1 (Vet. App. May 31, 2018). Because Mrs.
Ridgell did not identify any legal error committed by the
Veterans Court and we lack jurisdiction to evaluate her
factual challenges, we dismiss the appeal.
I. BACKGROUND
Mrs. Ridgell is the surviving spouse of Jerry Ridgell,
who served in the United States Army as an information
and administrative specialist from January 1972 to
March 1981.
In 2004, Mr. Ridgell died of a heart attack. His wife
then sought service-connected benefits and non-service-
connected pension benefits from the Department of Veter-
ans Affairs (“VA”). Based on earlier decisions regarding
her husband’s claims, Mrs. Ridgell’s claims were denied.
The history of both their claims is outlined below.
A. Mr. Ridgell’s Claims
In August 1997, Mr. Ridgell sought benefits from the
VA for non-Hodgkin’s lymphoma and a knee injury. The
form Mr. Ridgell completed included a section for listing
his income and assets. J.A. 106–07 (“NOTE: Items 33A
through 33D should be completed ONLY if you are apply-
ing for nonservice-connected pension.”). Mr. Ridgell
RIDGELL v. WILKIE 3
struck this section with a line and wrote “SC” and “Ser-
vice Connected.” Id.
In December 1997, the VA Regional Office in Little
Rock, Arkansas issued a decision on Mr. Ridgell’s claims.
The Regional Office noted that Mr. Ridgell sought
“[s]ervice connection for right knee injury” and “[s]ervice
connection for lymphoma.” J.A. 97. After concluding that
Mr. Ridgell had not offered evidence connecting either his
knee injury or his lymphoma to his military service, the
Regional Office denied his claims. Mr. Ridgell did not
appeal this decision.
In October 2000, Mr. Ridgell filed another request for
benefits seeking: (1) service-connected benefits for his
lymphoma and (2) non-service-connected pension benefits.
As part of this request, Mr. Ridgell was again asked to
provide information about his income and assets. 1 Mr.
Ridgell completed this section.
In February 2002, the VA Regional Office issued a
decision on Mr. Ridgell’s second request for benefits.
With respect to his request for service-connected benefits,
the VA denied his claim because he failed to present new
and material evidence to justify revisiting the VA’s De-
cember 1997 decision. J.A. 85 (“The evidence submitted
in connection with the current claim does not constitute
new and material evidence because it essentially dupli-
cates evidence which was previously considered . . . .”).
With respect to his request for non-service-connected
pension benefits, the VA granted his request. J.A. 86
(“Entitlement to pension benefits is granted effective date
of receipt of claim.”); see also 38 U.S.C. § 5110(a)(1)
1 The form also asked Mr. Ridgell whether he had
“previously filed a claim for disability compensation or
pension benefits with the VA.” J.A. 88 (emphasis added).
He did not answer this question. Id.
4 RIDGELL v. WILKIE
(“[T]he effective date of an award . . . or pension, shall be
fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of application thereof.”).
In a subsequent decision, however, the Regional Office
explained that, while Mr. Ridgell was eligible for pension
benefits based on his October 3, 2000 request, the VA
could not pay him pension benefits because his income
was too high. J.A. 80 (“Entitlement to non-service-
connected disability pension is not established because
the veteran’s income exceeds the statutory limitation
below which pension benefits may be paid.”).
Mr. Ridgell appealed the Regional Office’s decision in
July 2002. As part of his appeal, Mr. Ridgell explicitly
indicated that he was not appealing all of the issues
decided by the Regional Office. J.A. 51. Instead, Mr.
Ridgell explained that he was appealing the Regional
Office’s decision because it failed to address whether he
could receive benefits for the period of September 1997
through October 1998, when his income was below the
statutory ceiling for receiving pension benefits. Id.
Before Mr. Ridgell’s appeal was considered by the Board,
he passed away.
B. Mrs. Ridgell’s Claims
A few weeks after Mr. Ridgell’s death, Mrs. Ridgell
filed a request for accrued benefits, including service-
connected benefits and non-service-connected pension
benefits. The VA Regional Office denied her request.
First, the VA Regional Office concluded that
Mrs. Ridgell was not entitled to accrued service-connected
benefits because “[a]t the time of [Mr. Ridgell’s] death,
there was no claim for service connected benefits pend-
ing.” J.A. 32. Even though Mr. Ridgell’s July 2002 appeal
was still pending when he died, the Regional Office rea-
soned that, because he only appealed the effective date of
his non-service-connected pension benefits, his request for
service-connected benefits was final, and thus not pend-
RIDGELL v. WILKIE 5
ing, by the time he died. J.A. 33 (“Since [Mr. Ridgell’s]
VA Form 9 did not include the issue of service connection
for non-Hodgkin’s lymphoma, that issue was not included
as a continuing issue on his appeal.”).
Second, the Regional Office concluded that
Mrs. Ridgell was not entitled to accrued non-service-
connected pension benefits. According to the Regional
Office, Mr. Ridgell’s income after October 3, 2000 made
him, and thus Mrs. Ridgell, ineligible to receive pension
benefits. J.A. 33; see also J.A. 80. In Mr. Ridgell’s July
2002 appeal, he argued that the VA should have consid-
ered whether he was eligible for pension benefits starting
in September 1997, after Mr. Ridgell filed his first bene-
fits request. But the Regional Office concluded that
because Mr. Ridgell’s August 1997 request only sought
service-connected benefits, Mr. Ridgell’s first request for
non-service-connected benefits was filed on October 3,
2000. The Regional Office therefore denied Mrs. Ridgell’s
request for non-service-connected pension benefits based
on Mr. Ridgell’s income between 1997 and 2000 because
the earliest effective date to which Mr. Ridgell was enti-
tled to benefits was after October 2000. Mrs. Ridgell
appealed the Regional Office’s decision.
In October 2016, after remanding Mrs. Ridgell’s case
for further development, the Board denied her claims.
With respect to service-connected benefits, the Board
found that Mr. Ridgell “had no pending claim for service
connection for any condition” when he died. J.A. 20.
While Mr. Ridgell had sought service connection for his
knee injury, this claim was denied in 1997, never ap-
pealed, and thus not pending when he died. Mr. Ridgell’s
service connection claim for his lymphoma was similarly
denied in 1997 and again in 2002. And, according to the
Board, neither of these decisions were ever appealed. As
the Board explained:
6 RIDGELL v. WILKIE
While the Veteran did submit a substantive ap-
peal in July 2002, via a VA Form 9, he checked
the box indicating that he had read the SOC and
intended only those issues discussed below; he
then discussed only the determination that his in-
come was excessive so as to preclude payment of
non-service-connected pension benefits from Sep-
tember 1997 through October 1998. There was no
mention or suggestion that the Veteran intended
at the time to complete an appeal of his claim of
service connection for non-Hodgkin’s lymphoma.
There is no evidence of record to indicate the Vet-
eran submitted a separate substantive appeal ad-
dressing service connection for non-Hodgkin’s
lymphoma within the required time period.
J.A. 24.
The Board also found that Mr. Ridgell had not filed a
claim for non-service-connected benefits before October 3,
2000. According to the Board, Mr. Ridgell’s August 1997
claim “was claiming only service-connected compensation”
and could “in no way be construed as a claim for non-
service-connected benefits” because “he marked through
each section pertaining to non-service-connected pension,
writing either ‘SC’ or ‘service connected.’” J.A. 26.
Because Mr. Ridgell was not entitled to either service-
connected benefits or non-service-connected pension
benefits when he died, the Board concluded that Mrs.
Ridgell was not entitled to any benefits either. J.A. 22
(“For a surviving spouse to be entitled to accrued benefits,
‘the veteran must have had a claim pending at the time of
his death for such benefits or else be entitled to them
under an existing rating or decision.’” (quoting Jones v.
West, 136 F.3d 1296, 1299 (Fed. Cir. 1998))).
The Board also acknowledged that Mrs. Ridgell had
challenged the merits of the December 1997 rating deci-
sion, denying service connection for Mr. Ridgell’s lym-
RIDGELL v. WILKIE 7
phoma. Because this decision is final, the Board con-
strued Mrs. Ridgell’s challenge as one based on clear and
unmistakable error (“CUE”). It then dismissed her merits
challenge so that the agency of original jurisdiction, i.e.
the office where Mr. Ridgell’s claims originated, could
address Mrs. Ridgell’s challenge.
The Veterans Court found no clear error in the
Board’s decision denying benefits to Mrs. Ridgell or its
underlying factual findings. Ridgell, 2018 WL 2451829,
at *3. Indeed, it essentially adopted the Board’s reason-
ing with respect to the service-connected and non-service-
connected benefits claims. Id.
The Veterans Court also concluded that it had no ju-
risdiction to consider Mrs. Ridgell’s CUE challenge be-
cause the claim remained pending before the agency of
original jurisdiction, where the Board had referred the
matter. 2 Id. (“[T]he AOJ ha[s] not sent her a Statement of
the Case relating to her CUE claim . . . the Court may not
address the merits of the CUE matter or whether the
appellant has submitted new and material evidence
sufficient to reopen any claim.”).
2 The Veterans Court also explained that it lacked
jurisdiction to consider whether the VA relied on “fraudu-
lent relevant records” relating to another claim for ac-
crued benefits, which stemmed from Mr. Ridgell’s service
but was filed by one of his ex-wives who claimed the two
never divorced. Ridgell, 2018 WL 2451829, at *4. Accord-
ing to the Veterans Court, there was no dispute that the
VA considered Mrs. Ridgell to be Mr. Ridgell’s surviving
spouse. Id. The government does not suggest otherwise
on appeal. See Appellee’s Br. at 1 (“Mrs. Ridgell is the
surviving spouse of an Army veteran, Jerry Ridgell, who
passed away in February 2004.”), 9.
8 RIDGELL v. WILKIE
Mrs. Ridgell timely appealed. We have jurisdiction
under 38 U.S.C. §§ 7292(a), (c).
II. DISCUSSION
Mrs. Ridgell raises several challenges on appeal.
First, Mrs. Ridgell argues that the Board erred in deter-
mining that there was no request for service-connected
benefits pending when her husband died. Second, Mrs.
Ridgell argues that the Board erred in concluding that her
husband was not entitled to non-service-connected pen-
sion benefits before October 2000. Finally, Mrs. Ridgell
challenges the merits of the December 1997 rating deci-
sion denying her husband service-connected benefits. As
explained below, we do not have jurisdiction to review
these issues.
A. Service-Connected Benefits
“This court’s jurisdiction to review decisions by the
Veterans Court is limited.” Wanless v. Shinseki, 618 F.3d
1333, 1336 (Fed. Cir. 2010). Absent 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.” 38 U.S.C §
7292(d)(2). Instead, our jurisdiction extends to “relevant
questions of law, including interpreting constitutional and
statutory provisions.” 38 U.S.C. § 7292(d)(1). We review
these legal conclusions de novo. Wanless, 618 F.3d at
1336.
“[I]n order for a surviving spouse to be entitled to ac-
crued benefits, the veteran must have had a claim pend-
ing at the time of his death for such benefits or else be
entitled to them under an existing rating or decision.”
Jones, 136 F.3d at 1299. Mrs. Ridgell’s claim therefore
depends on whether Mr. Ridgell’s request for service-
connected benefits was “pending” when he died. The
Board determined that it was not because Mr. Ridgell did
not appeal the denial of service-connected benefits with
RIDGELL v. WILKIE 9
respect to either the December 1997 or October 2000
decision. Because this determination is a factual one, we
lack the authority to review it absent a constitutional
challenge or legal error. See, e.g., Comer v. Peake, 552
F.3d 1362, 1372 (Fed. Cir. 2009) (“Whether a veteran has
raised a particular claim is a factual determination,
outside the purview of our appellate authority.”); Moody v.
Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (“The
interpretation of these prior filings is essentially a factual
inquiry, and it is beyond our jurisdiction to make that
determination.”). Neither are present here. 3
B. Non-Service-Connected Benefits
As explained above, Mrs. Ridgell’s claim for non-
service-connected benefits is derivative of her husband’s
claim. See Jones, 136 F.3d at 1299.
Mrs. Ridgell argues that the Board should have con-
strued Mr. Ridgell’s August 1997 request for benefits as
both seeking service-connected and non-service-connected
benefits. This would entitle her to an earlier effective
date for pension benefits, covering a time when Mr.
Ridgell’s income may not have exceeded the statutory
ceiling. But the Board’s determination about which
claims Mr. Ridgell raised in his August 1997 application
is, again, a factual one. See, e.g., Ellington v. Peake, 541
3 Mrs. Ridgell has challenged the merits of the De-
cember 1997 rating decision on constitutional grounds,
arguing that the VA relied on fraudulent or deliberately
altered documents in denying Mr. Ridgell benefits. But,
as explained below, the merits of the December 1997
decision are not properly before us. To the extent Mrs.
Ridgell argues that the VA relied on fraudulent or altered
documents in addressing whether Mr. Ridgell’s service-
connected benefits claim was pending when he died, we
disagree.
10 RIDGELL v. WILKIE
F.3d 1364, 1371 (Fed. Cir. 2008) (“[T]he interpretation of
the contents of a claim for benefits [is] a factual issue over
which we d[o] not have jurisdiction.”); see also J.A. 26 (“A
review of the record indicates that neither the Veteran,
nor his representative, submitted any written correspond-
ence which could be construed as a formal or informal
claim of entitlement to non-service-connected pension
benefits prior to October 3, 2000.”). And so, while Mrs.
Ridgell insists that the August 1997 request should be
interpreted as seeking service-connected and non-service-
connected benefits, we lack the authority to review the
Board’s interpretation of Mr. Ridgell’s August 1997 filing.
See, e.g., Comer, 552 F.3d at 1372; Ellington v. Peake, 541
F.3d at 1371; Moody, 360 F.3d at 1310.
C. December 1997 Decision
Mrs. Ridgell argues that the VA made several errors
in its December 1997 decision denying Mr. Ridgell ser-
vice-connected benefits. The Board concluded that these
challenges needed to be addressed by the agency of origi-
nal jurisdiction, and it therefore dismissed her challenge
to the merits of the December 1997 decision. J.A. 20; see
also 38 C.F.R. § 19.9 (“The Board shall refer to the agency
of original jurisdiction for appropriate consideration and
handling in the first instance all claims reasonably raised
by the record that have not been initially adjudicated by
the agency of original jurisdiction, except for claims over
which the Board has original jurisdiction.”). Because the
Board did not address these issues, the Veterans Court
determined that it lacked jurisdiction to do so. 4 Ridgell,
4 Even so, the Veterans Court encouraged
Mrs. Ridgell “to provide the AOJ [in the other proceeding]
with any evidence she has that indicates that the veteran
was in fact deployed to the Republic of Vietnam and that
the veteran was exposed to hazardous materials.”
Ridgell, 2018 WL 2451829, at *3. The record does not
RIDGELL v. WILKIE 11
2018 WL 2451829, at *3. We likewise lack jurisdiction to
consider Mrs. Ridgell’s challenges to the merits of the
December 1997 decision, including her constitutional
challenges, until they are addressed by the appropriate
agency of original jurisdiction and appealed, if necessary,
in that case. While this result unfortunately subjects
Mrs. Ridgell to additional delay, it does not leave her
without recourse. Cf. Sucic v. McDonald, 640 F. App’x
901, 904 (Fed. Cir. 2016) (non-precedential) (“We hold
that the VA committed procedural error by failing to take
action on the claim that was referred to it by the Board.”).
III. CONCLUSION
We have considered Mrs. Ridgell’s remaining argu-
ments and conclude that they do not identify issues over
which we have jurisdiction to consider. Ultimately,
Mrs. Ridgell has not identified legal error committed by
the Veterans Court and we lack the authority to consider
her factual challenges. We therefore dismiss her appeal.
DISMISSED
COSTS
No costs.
indicate whether she has done so, nor does it reference
the status of Mrs. Ridgell’s CUE claim.