Case: 22-1154 Document: 21 Page: 1 Filed: 09/09/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROSE A. DAVIS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1154
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4603, Judge Joseph L. Falvey,
Jr.
______________________
Decided: September 9, 2022
______________________
ROSE DAVIS, Reading, PA, pro se.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY.
______________________
Case: 22-1154 Document: 21 Page: 2 Filed: 09/09/2022
2 DAVIS v. MCDONOUGH
Before MOORE, Chief Judge, HUGHES and STARK, Circuit
Judges.
PER CURIAM.
Rose A. Davis appeals a decision of the United States
Court of Appeals for Veterans Claims affirming the Board
of Veterans’ Appeals’ decision denying her recognition as
veteran Harvey W. Kimble’s surviving spouse. Because we
lack jurisdiction to hear Ms. Davis’ appeal, we dismiss.
BACKGROUND
Mr. Kimble served on active duty from July 1976 to
July 1980. S. Appx. 11. Ms. Davis and Mr. Kimble married
in July 1979 and divorced in September 2007. They did not
remarry. S. Appx. 12–13. Mr. Kimble passed away in Jan-
uary 2014 and, in April 2014, Ms. Davis applied for death
benefits from the Department of Veterans Affairs (VA).
S. Appx. 11, 13. In the application, she identified herself
as Mr. Kimble’s “former spouse” and indicated they di-
vorced in 2007. S. Appx. 13. A VA Pension Management
Center denied the application and Ms. Davis appealed to
the Board. S. Appx. 12–13. Following certification of the
appeal, Ms. Davis submitted additional evidence, including
two additional applications in June and September 2016.
Id. In the September 2016 application, Ms. Davis identi-
fied herself as Mr. Kimble’s “surviving spouse” and indi-
cated the marriage did not end until Mr. Kimble’s death.
S. Appx. 13.
As applicable here, a surviving spouse is a person who
was lawfully married to the veteran, was married to the
veteran at the time of the veteran’s death, and lived with
the veteran continuously from the date of marriage to the
date of the veteran’s death, except where there was a sep-
aration due to the misconduct of the veteran without the
fault of the spouse. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b).
Ms. Davis argued that she was Mr. Kimble’s surviving
spouse despite their divorce and separation because (1) the
Case: 22-1154 Document: 21 Page: 3 Filed: 09/09/2022
DAVIS v. MCDONOUGH 3
divorce was not valid and (2) the separation and divorce
were the result of Mr. Kimble’s misconduct. S. Appx. 13–
14. The Board did not agree and denied Ms. Davis’ claim.
S. Appx. 2, 11–17.
The Board first found the divorce decree was valid. Af-
ter reviewing the relevant Pennsylvania divorce statute
and the evidence submitted by Ms. Davis, it found the di-
vorce decree complied with the statute. S. Appx. 15. Con-
trary to Ms. Davis’ contention, the Board found no evidence
indicating Ms. Davis was not competent to sign legal docu-
ments at the time of the divorce decree. S. Appx. 15–16. It
further noted that Ms. Davis was represented by private
counsel during the divorce proceedings. S. Appx. 16.
The Board also rejected Ms. Davis’ argument that she
was a surviving spouse because the separation and divorce
were due to Mr. Kimble’s misconduct. S. Appx. 16–17. Ms.
Davis alleged that Mr. Kimble repeatedly committed adul-
tery and they therefore separated and divorced through no
fault of her own. S. Appx. 16. To support her argument,
she cited a December 2009 Board decision awarding
spousal recognition to an appellant who was divorced as
the result of the veteran’s misconduct. S. Appx. 16. The
Board rejected this argument noting that Board decisions
are not precedential, and the exception for misconduct ap-
plies only to situations where the veteran and the surviv-
ing spouse ceased cohabiting but remained legally married.
S. Appx. 16 (citing Haynes v. McDonald, 785 F.3d 614 (Fed.
Cir. 2014)). As Ms. Davis and Mr. Kimble were no longer
legally married at the time of Mr. Kimble’s death, the
Board stated there was no need to further address Ms. Da-
vis’ arguments about Mr. Kimble’s alleged misconduct. S.
Appx. 17. Ms. Davis moved for reconsideration, which the
Board denied. She subsequently appealed to the Veterans
Court. S. Appx. 18–20. The Veterans Court affirmed. Ms.
Davis appeals.
Case: 22-1154 Document: 21 Page: 4 Filed: 09/09/2022
4 DAVIS v. MCDONOUGH
DISCUSSION
Our jurisdiction over decisions of the Veterans Court is
limited. Under 38 U.S.C. § 7292(a), we may review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any interpretation
thereof (other than a determination as to a factual matter)
that was relied on by the [Veterans] Court in making the
decision.” Except with respect to constitutional issues, 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).
We lack jurisdiction over Ms. Davis’ appeal. Ms. Davis’
appeal does not involve the validity or interpretation of a
statute or regulation. Nor does it raise any constitutional
issues. Instead, it raises only the same factual arguments
Ms. Davis raised below and essentially asks us to reweigh
the evidence in her favor. 1 We lack jurisdiction to review
the Board’s factual findings and therefore dismiss.
DISMISSED
COSTS
No costs.
1 Ms. Davis also cites recently acquired evidence
that she alleges establishes her as Mr. Kimble’s benefi-
ciary. While we lack jurisdiction to review Ms. Davis’ al-
leged new evidence, if she indeed has new and relevant
evidence, she may submit a supplemental claim to the Re-
gional Office. See 38 C.F.R. § 3.2501.