NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-7117 RESTITUTO D. BARRAQUIAS, Claimant-Appellant, v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

Restituto D. Barraquias , of Damaguete City, Negros Oriental, Philippines, pro se. Gregg M. Schwind , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, fo r respondent-appellee. With him on the brief were Gregory G. Katsas , Assistant Attorney General, Jeanne E. Davidson , Director, and Brian M. Simkin , Assistant Director. Of counsel on the brief were David J. Barrans , Deputy Assistant General Counsel, and Christa A. Childers , Attorney, Office of the General Counsel, Unit ed States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Judge Kenneth B. KramerNOTE: This disposition is nonprecedential.



## United States Court of Appeals for the Federal Circuit

2008-7117 RESTITUTO D. BARRAQUIAS, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in 06-2342, Judge Kenneth B. Kramer.

__________ ________________ DECIDED: December 4, 2008

__________________________

Before MICHEL, Chief Judge , MOORE, Circuit Judge , and HUFF, District Judge

. *

PER CURIAM. Restituto D. Barraquias ap peals a decision of the U. S. Court of Appeals for Veterans Claims (Veterans Court). See Barraquias v. Peake , No. 06-2342, 2008 WL 425646 (Vet. App. Feb. 13, 2008). The Veter ans Court affirmed the Board of Veterans’ Appeals’ (Board) dismissal wit hout prejudice of Mr. Barraqui as’ motion to revise a September 26, 2003 decision on the basis of clear and unmista kable error (CUE). Mr. Barraquias ultimately seeks recognition as t he surviving child of Jesus R. Barraquias

* Honorable Marilyn L. Huff, District Judge, United States District Court for the Southern District of Califor nia, sitting by designation.(the veteran) for the purpose of receiving VA death benefits. We dismiss for lack of jurisdiction. The scope of our review of a Veterans Court decision is limited by statute. See 38 U.S.C. § 7292. Under § 7292(a), we may review a decision by the Veterans Court with respect to the validity 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.” We must a ffirm a Veterans Court decision unless it is “(A) arbitrary, capricious, an abuse of discr etion, or otherwise not in accordance with law; (B) contrary to constitutional right, powe r, privilege, or immunity; (C) in excess of statutory jurisdiction, aut hority, or limitations, or in viol ation of a statut ory right; or (D) without observance of proc edure required by law.” Id. § 7292(d)(1). Further, absent a constitutional issue, we may not review challenges to factual determinations or challenges to the application of a law or regulation to facts. Id. § 7292(d)(2).

The child of a deceased veteran is entitled to dependency and indemnity compensation when the veteran dies as a re sult of service-connected disabilities. See 38 U.S.C. §§ 1313, 1 314. A child is defined as "a person who is unmarried and . . . who, before attaining the age of eighteen years, became perma nently incapable of selfsupport . . . and who is a legitimate child." See 38 U.S.C. § 101(4)(A). “Such a child [is] known as a ‘helpless child’ under the parlance of veteran's law.” Hanlin v. Nicholson , 474 F.3d 1355, 1357 (Fed. Cir. 2007). Additiona lly, 38 C.F.R. § 3.356 provides that: A child must be shown to be permanent ly incapable of self-support by reason of mental or physi cal defect at t he date of attaini ng the age of 18 years. . . . The question of permanent incapacity fo r self-support is one of fact for determination by the rati ng agency on competent evidence of record in the individual case.

2008-7117 238 C.F.R. § 3.356(a), (b) (2007) . Accordingly, in order to qualify for dependency and indemnity compensation, the child of a vete ran must establish pe rmanent incapacity as of his eighteenth birthday. It is not disputed that Mr. Barra quias is the legitimate child of the veteran. Nor is it disputed that Mr. Barraquias was over the age of eighteen at the time of his father’s death. At issue in determining the dependen cy and indemnity compensation claim was whether Mr. Barraquias qualifie d as a helpless child. T he Board, in denying Mr. Barraquias’ appeal from a determi nation of the VA Regional Office, found that “there is no evidence nor allegation that [Mr. Barraqu ias] became permanently incapable of selfsupport prior to reaching age 18.” In re Barraquias , No. 03-266-13 (B. Vet. App. Sept. 26, 2003). The Board supported th is finding of fact by noti ng that “neither the veteran nor his spouse ever indicat ed that they had a helpless ch ild, and moreover, that the appellant himself has made no such assertion.” Id. Following the Board’s decisio n, Mr. Barraquias sent two letters to the Board alleging that he qualified as a helpless child due to deafness in one ear and further due

to his lack of education. The Board constru ed these letters as a motion to revise the denial on the basis of CUE. In response, t he Board held that “the requirements for a

motion for revision of a Boar d decision based on clear and unmistakable error have not been met,” because, to the extent that Mr. Ba rraquias alleged a CUE, “this allegation is presented in vague and general terms and does not state the specific reasons why the result would have been manifestly differen t. Instead it concerns the weighing of evidence and is not a specific error of fact or law.” In re Barraquias , No. 04-03-556 (B. Vet. App. Dec. 6, 2005).

2008-7117 32008-7117 4 Mr. Barraquias then appealed this decisio n to the Veterans Court, which held that: “Based on the record as a whole, th e Board’s finding that the pleadings below lacked the requisite specificity for a motion for revision based on CUE is plausible and not clearly erroneous. Acco rdingly, dismissal without prejudice is proper.” Barraquias , 2008 WL 425646 at *2 (citations omitted). Mr. Barraquias timely appealed to this court. Mr. Barraquias does not question the validity of a statute or regulat ion. He appears to be challenging the determination that he did not qualify as a helpless child. We do not have the jurisdiction to review challenges to factual determinations under 38 U.S.C. § 7292. Accordingly, we must dism iss for lack of jurisdiction.

COSTS

No costs.