Note: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

SHELIA WINSETT,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2012-7180

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 12-784, Judge Alan G. Lance Sr.

- - - - - - - - - - - - - - - - - - - - - - 

SHELIA WINSETT,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2013-7043

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 12-1572, Judge Robert N. Davis.
2 SHELIA WINSETT v. SHINSEKI

______________________ 

Decided: July 16, 2013

______________________ 

SHELIA WINSETT, of Parrish, Alabama, pro se, in appeals Nos. 2012-7180 and 2013-7043. 

AMANDA L. TANTUM, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent-appellee, in 

appeal no. 2012-7180. With her on the brief were STUART 

F. DELERY, Assistant Attorney General, JEANNE E.

DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were DAVID J.

BARRANS, Deputy Assistant General Counsel. 

BARBARA E. THOMAS, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent-appellee, in 

appeal no. 2013-7043. With her on the brief were STUART 

F. DELERY, Principal Deputy Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,

JR., Assistant Director. Of counsel was JOSHUA P. MAYER, 

United States Department of Veterans Affairs, of Washington, DC. 

______________________ 

Before LOURIE, BRYSON, and TARANTO, Circuit Judges.

PER CURIAM. 

These two consolidated appeals stem from the longrunning efforts of Shelia Winsett to receive benefits as the 

surviving spouse of Gary W. Jacks, a veteran.1 The 

1 Ms. Winsett has filed eight other appeals in this 

court relating to her surviving spouse claim. Winsett v. 

 
SHELIA WINSETT v. SHINSEKI 3

couple married in 1969 and lived together until 1977, 

when they divorced. Mr. Jacks subsequently died in 1989. 

Ms. Winsett claims that, after their divorce, she and Mr. 

Jacks reconciled and lived together in a common law 

marriage. The appeals currently before us, however, 

stray far from her underlying benefits claim.

At issue are two mandamus petitions filed by Ms. 

Winsett, both of which were denied by the Court of Appeals for Veterans Claims (“CAVC”) and are now consolidated on appeal. Ms. Winsett filed the appeals after 

lodging three successive surviving spouse claims before a 

regional office (“RO”) of the Department of Veterans 

Affairs (“DVA”), each one initiated before the appeal of 

the prior claim had run its course.

I 

A 

The RO denied Ms. Winsett’s first relevant claim in 

2004, finding that she did not qualify as Mr. Jacks’s 

surviving spouse. The Board of Veterans’ Appeals affirmed that decision in 2005, and the CAVC affirmed the 

Shinseki, 397 F. App’x 627 (Fed. Cir. 2010); Winsett v. 

Peake, 302 F. App’x 915 (Fed. Cir. 2008); Winsett v. Peake, 

283 F. App'x 796 (Fed. Cir. 2008); Winsett v. Nicholson, 

174 F. App’x 567 (Fed. Cir. 2006); In re Winsett, 90 F. 

App’x 398 (Fed. Cir. 2004); Winsett v. Principi, 341 F.3d 

1329 (Fed. Cir. 2003); Winsett v. Principi, 65 F. App’x 301 

(Fed. Cir. 2003); and Winsett v. West, 217 F.3d 854 (Fed. 

Cir. 1999). 

 
4 SHELIA WINSETT v. SHINSEKI

Board in 2007. This Court affirmed the CAVC in July of 

2008. Winsett v. Peake, 283 F. App’x 796 (Fed. Cir. 2008). 

By that time, Ms. Winsett had already filed a second surviving spouse claim with the RO, which she filed 

the day after the Board affirmed the RO’s original decision. The RO denied that new claim in 2005. Ms. Winsett 

then appealed that denial to the Board. On December 21, 

2007, the Board determined that she had presented new 

and material evidence, and it reopened her case, even 

though her original claim was still pending on appeal. 

Upon considering the new and material evidence, the

Board affirmed the RO’s denial of her claim. The Board 

also denied Ms. Winsett’s motion arguing that its 2005 

decision constituted clear and unmistakable error 

(“CUE”), because that decision had, by that point, already 

been upheld by the CAVC and was therefore not subject 

to revision by the Board. 

Ms. Winsett appealed the Board’s 2007 decision to 

the CAVC, arguing that the Board lacked jurisdiction over 

her second claim because her first claim was still pending 

on appeal. The court rejected that argument, noting that 

the Board has jurisdiction to reopen a case upon submission of new and material evidence. See 38 U.S.C. § 5108; 

38 C.F.R. § 3.156. The court also rejected Ms. Winsett’s 

CUE claim as to the Board’s 2005 decision, because that 

claim had been finally adjudicated by the CAVC and this 

court, and therefore was law of the case. Winsett v. 

Shinseki, No. 08-0210, 2010 WL 276193 (Vet. App. Jan. 

26, 2010). This court affirmed the CAVC, holding that 

“there was no error in allowing [Ms. Winsett’s] claim to be 

reopened while the case was on appeal.” Winsett v. 

Shinseki, 397 F. App’x 627, 629 (Fed. Cir. 2010). We 

further held that we lacked jurisdiction to review the 

Board’s determination that she and Mr. Jacks did not 

have a common law marriage at the time of Mr. Jacks’s 

death. Id.

More than a year before this court’s decision on her 

second surviving spouse claim, Ms. Winsett filed a third 
SHELIA WINSETT v. SHINSEKI 5

such claim with the RO on March 27, 2009. The RO 

denied that claim on April 16, 2009. Ms. Winsett then

corresponded with the RO by mail, arguing that the RO 

had issued its denial too quickly to have reviewed her 

case properly and that the RO lacked jurisdiction to issue 

a decision while the denial of her second claim was still on 

appeal.

On December 6, 2011, the RO agreed with Ms. 

Winsett that it had lacked jurisdiction to issue its denials 

of both her January 25, 2005, and March 27, 2009, claims 

(her second and third claims, respectively) while she had 

an earlier claim pending on appeal.2 The RO stated that 

the denial of the January 2005 claim “was already before 

the Board of Veterans’ Appeals before anyone [at the RO] 

was aware of the situation.” The Board’s decision, as 

affirmed by the CAVC and this court, remained legally 

operable. But as to the denial of the March 2009 claim, 

the RO did not issue a Statement of the Case and did not 

respond to Ms. Winsett’s Notice of Disagreement, thereby 

effectively closing her third claim. The RO interpreted 

Ms. Winsett’s communication as a request to reopen the 

case, and it advised her how she could submit evidence 

supporting that request.

B 

2 The CAVC noted that it is “unclear” whether the 

RO confessed error regarding Ms. Winsett’s second claim, 

decided by the Board in 2007, or regarding some other 

action it may have taken as to Ms. Winsett’s third claim. 

Winsett v. Shinseki, No. 12-784, 2012 WL 1155918, at *1

(Vet. App. Apr. 6, 2012). Because the CAVC did not 

decide that issue and the resolution of that question is not 

necessary to decide this case, we will assume the RO 

confessed error regarding the claim that prompted the

Board’s 2007 decision. The government does not appear 

to dispute that characterization.

 
6 SHELIA WINSETT v. SHINSEKI

On February 17, 2012, Ms. Winsett filed a petition 

for a writ of mandamus in the CAVC. Relying on the RO’s 

admission that it lacked jurisdiction to decide her second 

claim while the first was still on appeal, she asked the 

court to declare that the Board had lacked jurisdiction in 

December of 2007 to affirm the RO’s ruling. She asserted 

that if the Board had waited for this court to rule, it 

would have been bound by different facts—namely, the 

facts described in a portion of this court’s 2008 opinion 

affirming the CAVC. See Winsett, 283 F. App’x at 798. 

Ms. Winsett also requested that the CAVC order the 

Board to consider her CUE claim. 

The CAVC dismissed the petition on April 6, 2012, 

explaining that this court had already affirmed the 

Board’s decision and had explicitly noted its authority to 

reopen a case based on new and material evidence. That

determination was therefore binding on Ms. Winsett. 

Moreover, the court held that the Board’s denial of Ms. 

Winsett’s CUE claim was proper because that decision 

had already been affirmed by the CAVC, and the Board 

therefore could not revise its CUE ruling. Ms. Winsett 

then took this appeal from the CAVC’s dismissal of her 

mandamus petition. In the meantime, Ms. Winsett 

submitted a fourth surviving spouse claim to the RO on 

April 24, 2012.

On May 9, 2012, a little more than a month after 

her first mandamus petition was dismissed, Ms. Winsett 

filed a second petition for mandamus in the CAVC. In 

that petition she argued that the RO had violated her 

rights under the first and fifth amendments to the Constitution by holding that it lacked jurisdiction to process her 

appeal from the RO’s April 16, 2009, denial of her third 

surviving spouse claim. The CAVC denied that petition 

on August 20, 2012. The court held that Ms. Winsett had 

provided no plausible basis to conclude that the RO’s 

decision regarding its jurisdiction, “even if legally in 

error,” violated her constitutional rights. Winsett v. 

Shinseki, No. 12-1572, 2012 WL 3554585, at *2 (Vet. App. 
SHELIA WINSETT v. SHINSEKI 7

Aug. 20, 2012). The court further ruled that Ms. Winsett 

had an alternative avenue to challenge the RO’s decision—namely, the April 24, 2012, claim to the RO. Ms. 

Winsett now appeals from the CAVC’s dismissal of that 

mandamus petition as well.

Ms. Winsett has initiated additional proceedings 

that bear upon the issues in this case. While her first 

mandamus petition was pending before the CAVC, Ms. 

Winsett filed a motion before the Board asserting that the 

December 21, 2007, Board decision constituted CUE. On 

August 22, 2012, the Board denied that motion, noting 

that the CAVC had already determined there was no CUE 

in the Board’s 2007 decision, and that the Board lacked 

authority to revise that ruling. Ms. Winsett has appealed 

that decision to the CAVC.

Finally, on August 10, 2012—after the CAVC had 

dismissed the first mandamus petition but ten days before 

it ruled on her second mandamus petition—Ms. Winsett 

filed a third mandamus petition in the CAVC, alleging 

numerous errors by the court, the RO, and the Board, 

including an allegation that DVA employees had falsified 

or destroyed records relating to her various appeals. The 

CAVC rejected the petition on November 1, 2012, stating 

that Ms. Winsett had exhausted her appellate rights with 

respect to the December 21, 2007, Board decisions. Winsett v. Shinseki, No. 12-2664, 2012 WL 5360974, at *5

(Vet. App. Nov. 1, 2012). In addition, the court sanctioned 

Ms. Winsett for abuse of process; the court stated, “in 

light of the voluminous, repetitive, and frivolous filings 

received from Ms. Winsett, both in this case and in the 

past,” that with certain exceptions she would not be 

permitted to file any further pleadings before the CAVC 

without moving for permission and paying a filing fee. Id.

at *5-7. 

II

On appeal to this court, Ms. Winsett argues that it 

was improper for the RO to disclaim jurisdiction over her 
8 SHELIA WINSETT v. SHINSEKI

third surviving spouse claim on the ground that the 

appeal of her second case was still pending. She points 

out that the Board had earlier affirmed the RO’s denial of 

her second claim while the first was still pending. 

The answer to her argument is that the DVA has 

jurisdiction to re-open a case if it is presented with new 

and material evidence. “If new and material evidence is 

presented or secured with respect to a claim which has 

been disallowed, the Secretary shall reopen the claim and 

review the former disposition of the claim.” 38 U.S.C. 

§ 5108; 38 C.F.R. § 3.156. The reopened claim is a separate proceeding that is not tied to the fate of an earlier 

claim still on appeal. Sims v. Shinseki, 578 F.3d 1332, 

1335 (Fed. Cir. 2009) (“While a request to reopen is not a 

new claim for benefits, it is treated as a new matter 

distinct from the original claim for VA benefits.”). 

The Board in 2007 made a finding of new and material evidence with regard to Ms. Winsett’s second claim, 

originally brought before the RO in January of 2005.3 

That decision, affirmed by the CAVC and this court,

subsumed and rendered harmless the RO’s initial error in 

entertaining the second claim.4 By contrast, there has 

been no finding of new and material evidence as to the 

third claim, brought in March of 2009. Without such a 

3 Ms. Winsett argues that the Board improperly 

converted her CUE claim regarding its 2005 decision into 

a submission of new and material evidence, but this 

court’s earlier ruling foreclosed any argument that the 

Board’s 2005 decision contained CUE. Winsett, 283 F. 

App’x 796 (Fed. Cir. 2008).

4 Because the Board did not err in reopening the 

case, Ms. Winsett’s argument that she would have caught 

the error with the aid of counsel is beside the point. The 

RO’s error no longer had any effect after the Board’s 

decision was affirmed by the CAVC and this court. 

 
SHELIA WINSETT v. SHINSEKI 9

finding, the RO rightly determined that it could not 

disturb the Board’s December 2007 decision, and it closed 

the case. See 38 U.S.C. § 7104. 

For that reason, Ms. Winsett’s first mandamus petition is meritless. The Board had jurisdiction to reopen 

her January 2005 claim in light of new and material 

evidence. In addition, the Board correctly denied her 

motion to revive her CUE claim that this court had already decided on appeal. Winsett v. Shinseki, 397 F. 

App’x 627 (Fed. Cir. 2010). Our ruling became the law of 

the case and was not subject to further review by the 

Board. See Suel v. Sec’y of Health and Human Servs., 192 

F.3d 981, 985 (Fed. Cir. 1999). As a result, Ms. Winsett 

does not have the clear right to relief from the Board’s 

December 2007 decision that is required to invoke the 

extraordinary remedy of mandamus. Cheney v. U.S. Dist. 

Court for Dist. of Columbia, 542 U.S. 367, 381 (2004). Ms. 

Winsett has exhausted her appeals regarding the Board’s 

December 2007 decision, and our ruling affirming the 

Board’s decision and the CAVC’s judgment is final.

Ms. Winsett argues that a precedential opinion of 

the DVA’s General Counsel, VAOPGCPREC 20-94, suggests that the Board lacks jurisdiction to act on any claim 

currently on appeal before this court. But that opinion is 

inapposite here. It applies only to appeals to this court of 

decisions in which the CAVC has remanded a case back to 

the Board. While this court hears the appeal, the Board 

may not act on the CAVC’s remand. The same is not true

where the Board has itself reopened a case upon finding 

new and material evidence. In that situation, the Board 

has jurisdiction to reopen and decide that new and separate matter. See Sims, 578 F.3d at 1335. 

The second mandamus petition fares no better. 

The RO’s determination that it could not act on Ms. 

Winsett’s March 27, 2009, claim rests on the principle 

that the RO may not disturb the Board’s rulings unless a 

claimant presents new and material evidence. We lack 

jurisdiction to review the factual question whether any 
10 SHELIA WINSETT v. SHINSEKI

new and material evidence was presented at that time. 

38 U.S.C. § 7292(d)(2). The RO’s jurisdictional determination did not deprive Ms. Winsett of any constitutional 

right or any other clear right that would justify the exceptional remedy of mandamus. 

Ms. Winsett argues that if the Board had waited to 

issue its decision until this court had ruled she could have 

submitted a portion of our opinion as evidence showing 

that she and Mr. Jacks cohabited. The CAVC was correct 

to dismiss that argument. This court’s 2008 opinion 

stated that, “according to family and friends,” Ms. Winsett 

and Mr. Jacks “cohabited” for some time following their 

divorce. Winsett, 283 F. App’x at 798. But that reference 

to the record does not constitute a factual finding. The 

passage merely describes certain evidence; neither that 

passage nor anything else in this court’s opinion constitutes a finding as to whether Mr. Winsett and Mr. Jacks 

cohabited. 

Moreover, Ms. Winsett also has an alternative forum to adjudicate her underlying surviving spouse claim: 

the April 24, 2012, proceeding she has filed with the RO. 

She is free to present any new and material evidence on 

the surviving spouse issue that she would have presented 

had the RO heard those earlier claims. If she objects to 

the RO’s determination, she may appeal to the Board and 

then to the CAVC, provided that she abides by the filing 

requirements that court has imposed. Relief by writ of 

mandamus is plainly inappropriate under these circumstances.

III

In support of her various contentions, Ms. Winsett has 

made a number of accusations against DVA and judicial 

personnel. She accuses the DVA of fabricating records to 

suggest that she had appealed the 2009 RO decision to 

the Board, supposedly in an attempt to convince the 

CAVC to dismiss her mandamus petitions in light of this 

imaginary pending appeal. Ms. Winsett does not ade-
SHELIA WINSETT v. SHINSEKI 11

quately support such a serious charge, and the CAVC did 

not rely on any alleged pending claim before the Board to 

deny her mandamus petitions. 

Ms. Winsett also accuses the CAVC of holding ex parte

communications with the DVA and otherwise impugns 

the integrity and impartiality of the members of that 

court. These unsupported accusations are frivolous. She 

further contends that the CAVC’s decision not to assign

her case to a three-judge panel deprived her of due process. That argument, too, is baseless. See Arnesen v. 

Principi, 300 F.3d 1353, 1360-61 (Fed. Cir. 2002); 38

U.S.C. § 7254(b).

Finally, Ms. Winsett seeks review of the CAVC’s 

sanctions order entered as a remedy for her abuse of 

process. That order was not even issued when Ms. Winsett filed the two mandamus petitions here at issue, so it 

is not properly before this court in these appeals.

AFFIRMED