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`NOTE: This disposition is nonprecedential.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.
`______________________
`
`
`
`
`
`
`NOTE: This disposition is nonprecedential.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.
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
