Case: 20-1630 Document: 22 Page: 1 Filed: 11/04/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANCES A. BYERS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1630
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-5089, Judge Joseph L. Toth.
______________________
Decided: November 4, 2020
______________________
FRANCES A. BYERS, Mead, WA, pro se.
ANDREW JAMES HUNTER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD,
ROBERT EDWARD KIRSCHMAN, JR.
______________________
Before LOURIE, CLEVENGER, and CHEN, Circuit Judges.
Case: 20-1630 Document: 22 Page: 2 Filed: 11/04/2020
2 BYERS v. WILKIE
PER CURIAM.
Frances A. Byers appeals from the decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) dismissing, on the ground of res judicata,
her appeal from the Board of Veterans’ Appeals’ (“the
Board”) decision denying her request for enhanced depend-
ency and indemnity compensation (“DIC”). Byers v. Wilkie,
No. 18-5089, 2019 U.S. App. Vet. Claims LEXIS 1925 (Vet.
App. Oct. 31, 2019). Because Byers challenges the Veter-
ans Court’s factual determinations, or application of law to
fact, we dismiss this appeal for lack of jurisdiction.
BACKGROUND
Byers is the surviving spouse of Mr. Robert G. Byers,
who served on active duty in the Army from 1951 to 1953
and died from cardiac arrest in March 2004. Appx. 1–2. At
the time of his death, Mr. Byers had not been awarded ser-
vice connection for any disability. Id. at 2. Following her
husband’s death, on March 25, 2004, Byers filed a claim for
DIC based on her belief that her husband’s service contrib-
uted to his heart condition. The Department of Veterans
Affairs (“VA”) initially denied Byers’ request but ultimately
granted DIC in August 2011 after several years of appeals.
Id.
Five months later, Byers filed a claim for DIC at an en-
hanced rate. Id. The VA Regional Office (“RO”) denied
Byers’ request. On January 20, 2016, the Board affirmed
the RO’s decision, holding that the criteria for enhanced
DIC had not been shown because Byers’ husband was not
service connected for any disability at the time of his death
and the law precluded a surviving spouse from trying to
demonstrate “hypothetical entitlement” to enhanced DIC
after a veteran’s death. Id. Byers appealed to the Veterans
Court, where she presented a new argument that her hus-
band’s 1994 application for non-service-connected pension
actually constituted pending and unadjudicated claims for
disability compensation. Id. The Veterans Court rejected
Case: 20-1630 Document: 22 Page: 3 Filed: 11/04/2020
BYERS v. WILKIE 3
Byers’ arguments and affirmed the Board’s denial on Au-
gust 4, 2017. Id. at 2–3; see also Byers v. Shulkin, No. 16-
1481, 2017 U.S. App. Vet. Claims LEXIS 1137 (Vet. App.
Aug. 4, 2017).
In February 2018, Byers moved for reconsideration by
the Chairman of the Board of the Board’s January 2016 de-
cision, which was denied in July 2018. Appx. 3. Following
the denial of her request for reconsideration, Byers again
appealed to the Veterans Court in September 2018. Id. On
October 31, 2019, the Veterans Court dismissed Byers’ ap-
peal as barred by res judicata, observing that the “appeal
is the same as the one addressed by the Court in its August
2017 Decision.” Id. at 4; see also Byers v. Wilkie, No. 18-
5089, 2019 U.S. App. Vet. Claims LEXIS 1925 (Vet. App.
Oct. 31, 2019). Byers timely appealed the Veterans Court’s
dismissal.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review a decision of the Veterans
Court with respect to a rule of law or interpretation of a
statute or regulation relied on by the Veterans Court in its
decision. 38 U.S.C. § 7292(a). However, except with re-
spect to constitutional issues, we may not review chal-
lenges to factual determinations or challenges to the
application of a law or regulation to the facts of a case. Id.
§ 7292(d)(2).
On appeal, Byers asserts that the Veterans Court’s de-
cision involves the “validity or interpretation of a statute
or regulation.” Appellant’s Informal Br. at 1, item 2. How-
ever, rather than cite a relevant statute or regulation,
Byers argues that the Federal Circuit should “dismiss [r]es
[j]udicata” because the 2017 Veterans Court case “was not
judged on the merits” and she has “new and material evi-
dence.” Id. Byers further asserts that a VA employee er-
roneously filled out a form indicating that her husband was
seeking a pension when he had intended to file for
Case: 20-1630 Document: 22 Page: 4 Filed: 11/04/2020
4 BYERS v. WILKIE
disability compensation. Byers is presumably referring to
her earlier argument that her husband’s 1994 application
for non-service-connected pension constituted unadjudi-
cated claims for disability compensation, potentially ren-
dering her eligible for enhanced DIC. Byers requests a
remand to the Board and reconsideration of her claim for
enhanced DIC. Id. at 1, item 5.
The government responds that we lack jurisdiction
over this appeal because Byers’ arguments “amount to dis-
putes regarding factual findings or, at most, application of
law to facts,” which lie beyond this Court’s jurisdiction pur-
suant to 38 U.S.C. § 7292(a). Appellee’s Informal Br. at 10.
Moreover, the government argues that Byers “has not
demonstrated any legal error in the Veterans Court’s de-
termination that her case is barred by res judicata.” Id.
Indeed, Byers does not directly challenge the applica-
tion of res judicata to her case, which would present a legal
issue for de novo review within our jurisdictional reach.
See Faust v. United States, 101 F.3d 675, 677 (Fed. Cir.
1996). Instead, she raises factual questions about her
case. We therefore agree.
CONCLUSION
We have considered Byers’ remaining arguments but
find them unpersuasive. For the foregoing reasons, we dis-
miss the appeal.
DISMISSED
COSTS
No costs.