N OTE : This disposition is nonprecedential.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

______________________

R OSE D AVIS , Reading, PA, pro se.

E VAN W ISSER , Commercial Litigation Branch, Civil Division, United States Department of Justice , Washington, DC, for respondent

- appellee. Also represented by B RIAN M. B OYNTON , C LAUDIA B URKE , P ATRICIA M. M C C ARTHY

.

______________________ Case: 22-1154 Document: 21 Page: 1 Filed: 09/09/2022DAVIS v. MCDONOUGH 2

Before M OORE , Chief Judge

, H UGHES and S TARK , Circuit Judges

. P ER C URIAM

. Rose A. Davis appeals a decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals ’ d ecision denying her recognition as veteran Harvey W. Kimble’s surviving spouse . Because we lack jurisdiction to hear Ms. Davis’ appeal, we dismiss

. B ACKGROUND 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 . The y did not remarry. S. App x . 12

– 13 . Mr. Kimble passed away in January 2014 and

, in April 2014, M s. Davis applied for death benefits from the Department of Veterans Affairs (VA)

. S. Appx. 11, 13. In the application

, she identified herselfas Mr. Kimble’s “former spouse” and indicated they divorced in 2007. S. Appx. 13. A VA Pension Management Cent er 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 ve teran
, was married to the
veteran a t the time of the veteran ’ s death, and lived with the veteran continuously from the date of marriage to thedate 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: 09/09/2022DAVIS 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 th e 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

s pousal 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 whe re 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, theBoard 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

. S he subs equently appealed to the Veterans Court . S. Appx. 18

– 20. The Veterans Court affirmed

. Ms. Davis appeals. Case: 22-1154 Document: 21 Page: 3 Filed: 09/09/2022DAVIS v. MCDONOUGH 4

D ISCUSSION 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 [Veter ans] 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 i ssues, 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 ask s us to reweigh the evidence in her favor

. 1 We lack jurisdiction to review the Board’s factual findings and therefore dismiss

. DISMISSED

C OSTS

No costs.

1 Ms. Davis also cites recently acquired evidencethat 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 relevantevidence, 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