NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ROGACIANA A. RAMIREZ, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7079 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in Case No. 08-2921, Judge Robert N. 

Davis. 

____________________________ 

Decided: November 8, 2010 

____________________________ 

ROGACIANA A. RAMIREZ, Olongapo City, Philippines, 

pro se. 

P. DAVIS OLIVER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

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

With him on the brief were TONY WEST, Assistant Attor-
RAMIREZ v. DVA 2

ney General, JEANNE E. DAVIDSON, Director, and KIRK 

MANHARDT, Assistant General. Of counsel on the brief 

was DAVID J. BARRONS, Deputy Assistant General Counsel, United States Department of Veterans Affairs, of 

Washington, DC 

__________________________ 

Before LOURIE, LINN, and MOORE, Circuit Judges. 

PER CURIAM. 

Rogaciana A. Ramirez (“Ms. Ramirez”) appeals from 

the decision of the United States Court of Appeals for 

Veterans Claims (“the Veterans Court”) affirming a 

decision of the Board of Veterans’ Appeals (“the Board”), 

in which the Board determined that Ms. Ramirez had 

failed to submit new and material evidence to reopen a 

claim for revocation of the forfeiture of her right to veterans’ benefits under 38 U.S.C. § 6103(a). Ramirez v. 

Shinseki, No. 08-2921, 2010 WL 672768 (Vet. App. Feb. 

26, 2010). Because Ms. Ramirez’s appeal raises only 

factual issues outside this court’s appellate jurisdiction, 

we dismiss. 

BACKGROUND

Ms. Ramirez’s husband, veteran Ramon J. Ramirez 

(“the veteran”), served on active duty in the Army from 

February 1941 to March 1948. In 1982, the veteran filed 

a request for nonservice-connected pension benefits based 

on age, including a claim for additional benefits for four 

dependent children. In support of his claim, the veteran 

submitted for each child a birth certificate that was 

signed by Ms. Ramirez and that showed the veteran and 

Ms. Ramirez as the natural parents. The Veterans Administration, now the Department of Veterans Affairs, 

(“VA”) awarded the veteran pension benefits but withheld 
3 RAMIREZ v. DVA

the additional benefits for dependents pending the outcome of a field investigation. During the investigation, 

the veteran admitted in a deposition that the four children were not his and Ms. Ramirez’s natural children, 

and that Ms. Ramirez had signed and filed inaccurate 

birth certificates at the urging of a third party. Ms. 

Ramirez confirmed the correctness of the veteran’s testimony. As a result, the VA found that both the veteran 

and Ms. Ramirez had “knowingly and intentionally furnished [the VA] with materially false and fraudulent 

statements and evidence” in support of a claim for additional pension benefits, and on April 14, 1983, the VA 

terminated Ms. Ramirez’s right to veterans’ benefits 

pursuant to 38 U.S.C. § 6103(a). Ramirez, 2010 WL 

672768, at *1. 

The veteran died in March 1997, after which Ms. Ramirez filed for dependency and indemnity compensation, 

or death benefits. In August 2000, the VA denied the 

request, informing Ms. Ramirez that no benefits were 

payable because she had forfeited her right to such benefits pursuant to 38 U.S.C. § 6103(a) and that she had not 

submitted new and material evidence to reopen a claim 

for revocation of the forfeiture. In February 2006, Ms. 

Ramirez requested that the VA reopen her claim for death 

benefits, submitting three additional items of evidence: a 

copy of her marriage certificate, a copy of the veteran’s 

death certificate, and a signed letter dated February 8, 

2006. The VA Manila Regional Office (“RO”) found that 

no new and material evidence had been submitted to 

warrant revocation of the forfeiture declared against Ms. 

Ramirez. 

Ms. Ramirez appealed the RO’s decision to the Board. 

She argued that the veteran’s forfeiture for fraud under 

38 U.S.C. § 6103(a) should not be imposed on her as his 
RAMIREZ v. DVA 4

surviving spouse and that the RO failed in its duty to 

assist under the Veterans Claims Assistance Act 

(“VCAA”). On July 16, 2008, the Board held that the 

additional evidence presented was not material because it 

did not tend to show that Ms. Ramirez had not attempted 

to fraudulently deceive the VA as to her and her husband’s true relationship with the four children for whom 

veterans’ benefits were claimed. In so holding, the Board 

noted that, despite Ms. Ramirez’s arguments to the 

contrary, the VA did not impose the initial forfeiture 

decision on the veteran alone, but also separately on Ms. 

Ramirez. 

The Board also addressed Ms. Ramirez’s VCAA claim 

despite concluding that the VCAA does not apply to 

claims for revocation of forfeiture. The Board held that 

although Ms. Ramirez received “inadequate preadjudicatory notice” for her claim to reopen, the record 

reflected that the March 2006 RO decision on appeal 

provided “very specific notice” to Ms. Ramirez of the 

evidence necessary to substantiate her claim and that the 

essential fairness of the process had not been affected. 

Ms. Ramirez appealed to the Veterans Court claiming 

that the Board’s decision considering her role in making 

false statements to the VA was clear and unmistakable 

error. On February 26, 2010, the Veterans Court held 

that there was no clear error in the Board’s determination 

that Ms. Ramirez had failed to submit new and material 

evidence to reopen her claim for revocation of forfeiture. 

Ramirez, 2010 WL 672768, at *2. The court stated that 

“the Board clearly found that the submitted evidence was 

not material, as it did not relate to an unestablished fact 

necessary to substantiate the claim, and did not tend to 

show that Ms. Ramirez did not attempt to fraudulently 

deceive [the] VA,” concluding that “[t]his determination 
5 RAMIREZ v. DVA

by the Board complies with the definition of ‘material’ in 

38 C.F.R. § 3.156(a).” Id. 

Ms. Ramirez timely appealed to this court. We have 

jurisdiction pursuant to 38 U.S.C. § 7292(c). 

DISCUSSION

This court’s jurisdiction to review decisions of the 

Veterans Court is limited by statute. 38 U.S.C. § 7292. 

We “have exclusive jurisdiction to review and decide any 

challenge to the validity of any statute or regulation or 

any interpretation thereof [by the Veterans Court] . . . , 

and to interpret constitutional and statutory provisions, 

to the extent presented and necessary to a decision.” Id.

§ 7292(c). We must hold unlawful and set aside any 

regulation or any interpretation thereof relied upon by 

the Veterans Court that we find to be “(A) arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law; (B) contrary to constitutional right, 

power, privilege, or immunity; (C) in excess of statutory 

jurisdiction, authority, or limitations, or in violation of a 

statutory right; or (D) without observance of procedure 

required by law.” Id. at § 7292(d)(1). We, however, “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.” Id. § 7292(d)(2). 

Ms. Ramirez argues that the fraudulent act of the 

veteran found pursuant to 38 U.S.C. § 6103(a) should not 

be imposed on her as the veteran’s surviving spouse, and 

thus she is entitled to veterans’ benefits. She also argues 

that the RO failed in its duty to assist under the VCAA. 

The government responds that because the Veterans 

Court did not interpret a statute or regulation but merely 
RAMIREZ v. DVA 6

applied the established law concerning veterans’ benefits 

to the facts and circumstances of Ms. Ramirez’s case, this 

court lacks jurisdiction over her appeal. Specifically, the 

government argues that the fact that Ms. Ramirez was 

found to have committed a fraudulent act against the VA 

and that she has submitted no new and material evidence 

to substantiate a claim to the contrary are factual determinations made by the Board, upheld by the Veterans 

Court, and not subject to review by this court. The government also argues that the Board’s determination that 

the failure to provide pre-adjudicatory notice under the 

VCAA was not prejudicial error is also a factual issue 

outside this court’s appellate jurisdiction. 

We agree with the government. We first note that the 

record does not support Ms. Ramirez’s repeated assertions 

that the VA applied 38 U.S.C. § 6103(a) to her based on 

the fraudulent acts of her husband; the record shows that 

the VA terminated Ms. Ramirez’s right to VA benefits 

based on a finding that she, separate from the veteran, 

had attempted to deceive the VA. Accordingly, neither 

the Board nor the Veterans Court interpreted § 6103(a) as 

applying to the surviving spouse of a veteran who had 

been found to have forfeited benefits under the statute, 

but rather as applying to Ms. Ramirez as the one who 

committed fraud. We lack jurisdiction to review the 

factual determinations underlying that decision. 38 

U.S.C. § 7292(d)(2). We also lack jurisdiction to review 

whether Ms. Ramirez submitted new and material evidence to reopen her claim for revocation of the forfeiture 

because, as we have held, “whether evidence in a particular case is ‘new and material’ is either a ‘factual determination’ under section 7292(d)(2)(A) or the application of 

law to ‘the facts of a particular case’ under section 

7292(d)(2)(B) and is, thus, not within this court’s appellate jurisdiction.” Barnett v. Brown, 83 F.3d 1380, 1383 
7 RAMIREZ v. DVA

(Fed. Cir. 1996). Finally, with regard to Ms. Ramirez’s 

VCAA claim, we have held that whether the VA complied 

with the VACC’s notice requirements, Garrison v. Nicholson, 494 F.3d 1366, 1370 (Fed. Cir. 2007), or whether a 

VA error was prejudicial, Newhouse v. Nicholson, 497 

F.3d 1298, 1302 (Fed. Cir. 2007), are factual issues 

squarely outside our jurisdiction. Accordingly, we dismiss

Ms. Ramirez’s appeal for lack of jurisdiction. 

DISMISSED 

COSTS

 No costs.