Case: 21-1878 Document: 38 Page: 1 Filed: 07/22/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

JULIA M. BURNS, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2021-1878 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 19-5946, Judge Michael P. Allen. ______________________

Decided: July 22, 2022 ______________________

KENNETH DOJAQUEZ, Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

MATTHEW JUDE CARHART, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, ERIC P. BRUSKIN, BORISLAV KUSHNIR, PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, EVAN SCOTT GRANT, Office of General Counsel, Case: 21-1878 Document: 38 Page: 2 Filed: 07/22/2022

2 BURNS v. MCDONOUGH

United States Department of Veterans Affairs, Washing- ton, DC. ______________________

Before STOLL, SCHALL, and CUNNINGHAM, Circuit Judges. SCHALL, Circuit Judge. DECISION Julia M. Burns is the surviving spouse of Willie J. Burns, a veteran. She appeals the January 22, 2021 deci- sion of the United States Court of Appeals for Veterans Claims (“Veterans Court”) in Burns v. Tran, No. 19-5946, 2021 WL 222260 (Vet. App. Jan. 22, 2021). In that deci- sion, the Veterans Court affirmed the May 10, 2019 deci- sion of the Board of Veterans’ Appeals (“Board”) that denied Mrs. Burns’s motion to revise on the basis of clear and unmistakable error (“CUE”) a December 2012 rating decision that granted an effective date of May 4, 2011, but no earlier, for the award of service connection for the cause of her husband’s death. J.A. 31. For the reasons set forth below, we dismiss for lack of jurisdiction. DISCUSSION I Mr. Burns served in the United States Army from Jan- uary of 1971 to April of 1972. His time in the Army in- cluded service in the Republic of Vietnam (“Vietnam”). Burns, 2021 WL 222260, at *1. On November 18, 2000, Mr. Burns died of a myocardial infarction. Within a year of her husband’s death, Mrs. Burns requested that the Depart- ment of Veterans Affairs (“VA”) provide her with a flag for his burial. J.A. 31. In March of 2010, the VA proposed revisions to the reg- ulation governing presumptive service connection for dis- eases associated with exposure to herbicides. 75 Fed. Reg. 14,391 (Mar. 25, 2010). Relevant to this case, the Secretary Case: 21-1878 Document: 38 Page: 3 Filed: 07/22/2022

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of Veterans Affairs determined that myocardial infarction should be presumptively service connected to service in Vi- etnam, where the United States used the herbicidal Agent Orange. Id. at 14,392–93, 14,401. These proposed revi- sions went into effect on August 31, 2010. 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 2010) (Final Rule); see 38 C.F.R. § 3.309(e) (2010). 1 Following this regulatory change, in May of 2012, Mrs. Burns submitted a claim to the VA for dependency and in- demnity compensation (“DIC”) benefits based upon the fact that Mr. Burns had served in Vietnam and had died of a myocardial infarction. J.A. 11–18. In a decision dated December 13, 2012, the VA regional office (“RO”) granted service connection due to the pre- sumption of Mr. Burns having been exposed to Agent Or- ange. Id. at 19–20. Pursuant to 38 C.F.R. § 3.114(a)(3), the RO assigned an effective date of May 4, 2011, which was one year prior to the receipt of Mrs. Burns’s claim. Id. at 21. Mrs. Burns did not appeal the RO’s decision, and it became final. Id. at 34. In February of 2017, Mrs. Burns moved to revise the December 2012 rating decision on the basis of CUE. Id. at 23–24. In this motion, which was made before the RO, Mrs. Burns argued that her request for a burial flag put the VA on notice that Mr. Burns had died and that 38 C.F.R. § 3.150(b) required the VA to send her an application for

1 The Agent Orange Act, 38 U.S.C. § 1116, grants a presumption of service connection for veterans who served in Vietnam and who suffer from certain diseases. Section 3.309(e) of 38 C.F.R. provides the list of diseases “associ- ated with exposure to certain herbicide agents” that are subject to presumptive service connection if certain other requirements are met. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Case: 21-1878 Document: 38 Page: 4 Filed: 07/22/2022

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DIC benefits. Id. 2 Mrs. Burns contended that she filed an informal claim for survivor benefits when she notified the VA of her husband’s death. Id. at 24. Consequently, she claimed, she was entitled to an effective date of November 19, 2000, the day after her husband’s death, for her DIC benefits. Id. On April 25, 2017, the RO denied Mrs. Burns’s CUE motion. Id. at 43–44. By separate letter dated September 14, 2017, Mrs. Burns requested “that the entire paper claims file in th[e] case be made available for [her attorney] to review in per- son.” Id. at 25. On March 15, 2018, the VA notified Mrs. Burns’s attorney that the folder relating to her claim was sent to the VA’s Records Management Center in 2012, but that the folder had been destroyed. Id. at 26. The VA fur- ther stated that the records remained available electroni- cally. Id. In the meantime, Mrs. Burns had appealed the denial of her CUE motion to the Board. Id. at 45. By Order dated May 10, 2019, the Board denied Mrs. Burns entitlement to an effective date earlier than May 4, 2011, for the grant of service connection for Mr. Burns’s death. Id. at 31–39. The Board observed that 38 C.F.R. § 3.150(b) only requires the VA to forward an application for benefits to dependents who have “apparent entitle- ment” to such benefits. Id. at 33. The Board determined that, in 2000, when she requested a burial flag, Mrs. Burns did not have “apparent entitlement” for two reasons. First, she could not have had apparent entitlement based upon benefits being received by Mr. Burns because prior to his death Mr. Burns “was not service connected for any disa- bilities.” Id. at 36. Second, Mrs. Burns could not have had

2 38 C.F.R. § 3.150(b) provides that, “[u]pon receipt of notice of death of a veteran, the appropriate application form will be forwarded for execution by or on behalf of any dependent who has apparent entitlement to pension, com- pensation, or dependency and indemnity compensation.” Case: 21-1878 Document: 38 Page: 5 Filed: 07/22/2022

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apparent entitlement to benefits based upon presumptive exposure to Agent Orange because myocardial infarction, Mr. Burns’s cause of death, was not added to 38 C.F.R. § 3.309(e) until 2010, approximately nine years after Mrs. Burns notified the VA of her husband’s death. J.A. 37. Ac- cordingly, the Board concluded that the RO did not commit CUE when it assigned an effective date of May 4, 2011, for Mrs. Burns’s entitlement to DIC benefits. Id. As noted, in its decision dated January 22, 2021, the Veterans Court affirmed the decision of the Board. Burns, 2021 WL 222260, at *3. In its decision, however, the court took an approach different from that followed by the Board. The court started from the premise that a violation of the VA’s duty to assist cannot constitute CUE. Id. at *2 & n.17 (citing Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc)). The court then held that 38 C.F.R. § 3.150(b) “imposes a duty-to-assist requirement on VA to forward the appropriate forms to dependents with appar- ent entitlement.” Id. at *3 (internal quotation marks and citation omitted). Because violations of the duty to assist cannot constitute CUE, the Veterans Court concluded that an alleged violation of § 3.150(b) likewise could not consti- tute CUE. Id. The court stated that it did not need to reach the question of Mrs. Burns’s “apparent entitlement” to ben- efits under the regulation. Id. Nevertheless, the court ex- pressed approval of the Board’s decision on this point. Id. Following the decision of the Veterans Court, Mrs. Burns timely appealed. II Our jurisdiction to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292. We have jurisdiction to decide an appeal insofar as it presents a challenge to the court’s decision regarding a rule of law, in- cluding a decision about the interpretation or validity of any statute or regulation. Id. at § 7292(a), (d)(1). However, we lack jurisdiction to entertain a challenge to a factual Case: 21-1878 Document: 38 Page: 6 Filed: 07/22/2022

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determination or a challenge to the application of a law or regulation to the facts of a particular case where, as here, the appeal presents no constitutional issue. Id. at § 7292(d)(2). III On appeal, Mrs. Burns makes two arguments. Her first argument is that the Veterans Court erred in holding that § 3.150(b) is a duty-to-assist regulation. According to Mrs. Burns, the duty-to-assist doctrine focuses on the VA’s obligation to obtain evidence, which does not exist until an application for benefits is filed. Appellant’s Br. 7, 9–11.3 Second, Mrs. Burns turns to the requirement in § 3.150(b) that the surviving spouse “ha[ve] apparent entitlement to [benefits].” Id. at 15–16. Citing the fact that records relat- ing to her claim were destroyed, Mrs. Burns asks us to in- voke the doctrine of spoliation, see Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 107 (2d Cir. 2002); Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001), and impose upon the VA an adverse inference as to what the destroyed records would demon- strate: The willful destruction of Mr. Burns’ records pre- vents Mrs. Burns from meeting any standard, no matter how narrow or broad, to demonstrate that she had an “apparent entitlement” to benefits. In keeping with the pro-veteran nature of this bene- fits scheme, and the Court’s important interest in controlling the judicial process, it would be appro- priate in this case to presume that the evidence VA destroyed was favorable to Mrs. Burns and estab- lished that she had “apparent entitlement to

3 The Secretary agrees with Mrs. Burns that § 3.150(b) is not part of the VA’s statutory duty to assist. Appellee’s Br. 27. We agree with the parties on this point. Case: 21-1878 Document: 38 Page: 7 Filed: 07/22/2022

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[benefits].” As such, the VA had an obligation un- der § 3.150(b) to send her an application. Appellant’s Br. 19. Recognizing that the core issue in this case is whether, at the time of her husband’s death, Mrs. Burns had appar- ent entitlement to DIC benefits, the Secretary takes the po- sition that this is a factual matter that we lack jurisdiction to decide. Appellee’s Br. 14–15. In the alternative, the Sec- retary argues that, if we do reach the issue, we should af- firm the determination of the Board and the Veterans Court that, at the time of her husband’s death, Mrs. Burns did not have apparent entitlement to DIC benefits. Id. at 15–18. Finally, the Secretary urges us to reject Mrs. Burns’s spoliation argument. Id. at 18–26. In reply, Mrs. Burns does not address the Secretary’s jurisdictional argument. Rather, urging us to apply the spoliation doctrine and thus apply an adverse inference against the Secretary, she contends that the record estab- lishes an apparent entitlement to DIC benefits as of the date of Mr. Burns’s death in November of 2000. Appellant’s Br. 13–17. Mrs. Burns thus urges us to reverse the Veter- ans Court’s affirmance of the Board’s denial of her CUE motion. Id. IV We agree with the Secretary that we lack jurisdiction in this case. The question in the case is whether Mrs. Burns had apparent entitlement to benefits when she re- quested a burial flag in 2000. As seen above, the Board determined, based upon the facts before it (that Mr. Burns was not receiving benefits at the time of his death and that myocardial infarction was not added to 38 C.F.R. § 3.309(e) until 2010), that Mrs. Burns could not have had apparent entitlement to DIC benefits at the time of her husband’s death in 2000. In asking us to hold that the Board erred in its CUE determination, Mrs. Burns is asking us to resolve Case: 21-1878 Document: 38 Page: 8 Filed: 07/22/2022

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factual matters beyond our jurisdiction. See Wolfe v. Peake, 281 F. App’x 993, 994–95 (Fed. Cir. 2008). CONCLUSION For the foregoing reasons, we lack jurisdiction to adju- dicate Mrs. Burns’s appeal. The appeal is therefore dis- missed. 4 DISMISSED COSTS No costs.

4 Because we lack jurisdiction in this case, it is not necessary for us to address Mrs. Burns’s spoliation claims. We note, however, that even if we were to agree that an adverse presumption could apply in the context of VA pro- ceedings, see Jandreau v. Nicholson, 492 F.3d 1372, 1375 (Fed. Cir. 2007); Cromer v. Nicholson, 455 F.3d 1346, 1350– 51 (Fed. Cir. 2006), Mrs. Burns’s claim of spoliation would require us to address factual matters and/or the applica- tion of law to fact. These would include, e.g., whether the records were destroyed with a culpable state of mind and whether the destroyed records were relevant to Mrs. Burns’s claim. See Residential Funding Corp., 306 F.3d at 107. Accordingly, even if the spoliation claim were properly before us, we would lack jurisdiction to adjudicate it.