NOTE: This disposition is nonprecedential.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 Division, 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: 1 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 January 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 divorced 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 identified herself as Mr. Kimble’s “surviving spouse” and indicated 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 separation 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: 2 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. After reviewing the relevant Pennsylvania divorce statute 

and the evidence submitted by Ms. Davis, it found the divorce decree complied with the statute. S. Appx. 15. Contrary to Ms. Davis’ contention, the Board found no evidence 

indicating Ms. Davis was not competent to sign legal documents 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 adultery 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 applies only to situations where the veteran and the surviving 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. Davis’ 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: 3 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 beneficiary. While we lack jurisdiction to review Ms. Davis’ alleged new evidence, if she indeed has new and relevant 

evidence, she may submit a supplemental claim to the Regional Office. See 38 C.F.R. § 3.2501.

Case: 22-1154 Document: 21 Page: 4 Filed: 09/09/2022