Case: 24-1066     Document: 20    Page: 1   Filed: 05/07/2024




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                ANGELA GOLDMAN SELBY,
                    Claimant-Appellant

                             v.

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

                        2024-1066
                  ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 22-5763, Judge Joseph L. Falvey,
 Jr.
                 ______________________

                   Decided: May 7, 2024
                  ______________________

    ANGELA G. SELBY, Carthage, TX, pro se.

     NATALEE A. ALLENBAUGH, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for respondent-appellee. Also repre-
 sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
 PATRICIA M. MCCARTHY.
                  ______________________
Case: 24-1066    Document: 20      Page: 2    Filed: 05/07/2024




 2                                       SELBY v. MCDONOUGH




     Before LOURIE, PROST, and STARK, Circuit Judges.
 PER CURIAM.
     Angela Goldman Selby appeals from a decision of the
 United States Court of Appeals for Veterans Claims (“Vet-
 erans Court”) affirming a Board of Veterans’ Appeals
 (“Board”) decision denying her an increased share of her
 late father’s accrued Department of Veterans Affairs (“VA”)
 disability benefits under the provisions of 

. See Selby v. McDonough, No. 22-5763, 

 (Vet. App. Sept. 6, 2023) (“Decision”). We affirm.
                        BACKGROUND
     Selby is the adult daughter of Navy veteran James D.
 Goldman, who served honorably from June 1965 to August
 1969. Decision at *1; Resp. Br. at 2. In June 2020, Gold-
 man died of kidney failure secondary to bladder cancer.
 Resp. Br. at 2−3. Goldman is survived by Selby, as well as
 three other adult children. R.A. 1 26.
     In 2021, Congress added bladder cancer to the list of
 conditions presumptively associated with exposure to herb-
 icide agents. See 

(a)(2)(J). In June 2022,
 a VA regional office (“RO”) issued a decision awarding
 Goldman service connection under the Nehmer consent de-
 cree for the purpose of retroactive benefits for bladder can-
 cer associated with herbicide exposure. R.A. 9−20; see also
 Nehmer v. U.S. Veterans Admin., 

 (N.D. Cal. 1999) (describing the consent decree). The RO
 granted service connection with a 100 percent evaluation
 effective from November 29, 2006 to April 30, 2007, as well
 as a 100 percent evaluation from January 8, 2008 until his
 death in 2020. R.A. 21−24. The VA notified Selby that her
 father was entitled to retroactive benefits of $276,505.02



     1   “R.A.” refers to the appendix filed with Respond-
 ent’s Brief.
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 SELBY v. MCDONOUGH                                          3



 and that she and her three siblings would each receive a
 one-fourth share of $69,125.25. 

     Selby submitted a timely Notice of Disagreement, al-
 leging that she had been her father’s only caregiver and
 that, based on her father’s will, the retroactive benefits
 should not be divided equally, but instead, paid “mostly, if
 not all,” to her. R.A. 25.
      In a September 21, 2022 decision, the Board denied
 Selby entitlement to an increased share of accrued bene-
 fits. R.A. 26−31. As explained by the Board, the “provi-
 sions of 

 set forth the class members who
 may be considered for awards under the Nehmer court or-
 ders and govern the payment of benefits to survivors or es-
 tates of deceased beneficiaries.” 

. That regulation
 sets forth a sequential order in which retroactive benefits
 are to be paid out upon the death of the veteran entitled to
 such benefits. First, the veteran’s spouse, and next, “the
 class member’s child(ren) regardless of age or marital sta-
 tus (i.e., natural and adopted children and any stepchil-
 dren who were members of the class member’s household
 at the time of his death).” 

; see 

(f)(i)−(ii).
      The Board identified that Goldman had three biological
 children and one adopted child. R.A. 29. The Board further
 noted that 

(f)(1)(ii) holds that “if more
 than one child exists, payment will be made in equal shares
 [to each child].” R.A. 29 (alteration in original). The Board
 concluded that the law does not allow the VA to restrict
 payment of retroactive accrued Nehmer benefits only to
 certain children “regardless of [a] will or the caretaking re-
 sponsibilities the respective children undertook.” 

.
     The Veterans Court affirmed that decision. Selby ap-
 pealed.
                         DISCUSSION
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 4                                       SELBY v. MCDONOUGH




     Our jurisdiction to review decisions of the Veterans
 Court is governed by 

. We review legal de-
 terminations, including questions of statutory and regula-
 tory interpretation, de novo. Andre v. Principi, 

 (Fed. Cir. 2002). Absent a constitutional issue,
 we may not review a challenge to a factual determination
 or a challenge to a law or regulation as applied to the facts
 of a particular case. 

(d)(2); Wanless v.
 Shinseki, 

 (Fed. Cir. 2010).
     The core issue in Selby’s appeal is whether or not the
 Veterans Court erred in affirming the Board’s decision that
 accrued benefits had to be equally split between Goldman’s
 four children. Decision at *1. To the extent that Selby ar-
 gues that an error arose due to a misinterpretation of
 

, we have jurisdiction to decide the issue
 under 

(a). However, Selby has not alleged
 any specific error on the part of the Veterans Court in in-
 terpreting that regulation, and we do not see an error in its
 analysis.
      As the Veterans Court correctly recognized, “a valid
 regulation governs the distribution of accrued benefits,”
 and “under this regulation, VA was required to distribute
 benefits to surviving children without regard to what state
 law or a will had to say about the matter.” Decision at *1−2
 (citing Morris v. Shinseki, 

, 508−09 (2014)
 (holding that when a federal statute or regulation ex-
 pressly covers the distribution of VA benefits, it displaces
 the state law governing the division of property)). Federal
 law thus required the VA to distribute the funds to Gold-
 man’s four children in equal shares under 

(f) and the VA complied with that law.
     Selby also appears to argue that, because she re-
 quested to be substituted as claimant upon her father’s
 death and was the sole beneficiary of his will, the VA
 should have treated her as if she was her father’s only child
 for the purposes of § 3.816. See Appellant’s Inf. Br. at 1.
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 SELBY v. MCDONOUGH                                         5



 But we lack jurisdiction to review such a claim contesting
 the law as applied to the particular facts of Selby’s case.
 See 

(d)(2).
     Relatedly, Selby argues that she should be substituted
 into her father’s case, stating that “38 C.F.R. § 3.816 was
 amended by Congress in 2008 to allow substitution in any
 case where a veteran dies on or after the Modernization Act
 of 2008 was passed into law.” Appellant’s Inf. Br. at 1. She
 further contends that she “meet[s] all requirements to be
 considered as a substitution,” noting that she filed VA
 Form 21P-0847, which is the form used for substitution of
 a claimant upon death of the original claimant, wherein
 that death occurs before the VA finishes processing a VA
 claim, decision review, or appeal. Id.
     But Selby does not appear to have raised an argument
 regarding substitution before the Veterans Court and we
 therefore do not have a decision as to substitution to review
 on appeal. We thus decline to consider such an argument
 under Boggs v. West, 

, 1337_38 (Fed. Cir.
 1999). But even if Selby were to be substituted into the
 case, such substitution would not displace the distributions
 set forth in § 3.816. Substitution grants an eligible ac-
 crued-benefits claimant only the opportunity to “process[]
 the claim to completion” in the deceased veteran’s stead.
 35 U.S.C. § 5121A(a)(1). It does not affect the way in which
 accrued benefits are to be distributed once a decision as to
 those benefits has been reached.
     Selby further seems to argue that the RO erred in find-
 ing a period of time, specifically, May 1, 2007 to January 7,
 2008, non-compensable. Appellant’s Inf. Br. at 2. In par-
 ticular, Selby contends that during that time, Goldman un-
 derwent multiple medical procedures relating to his
 bladder cancer and should have been compensated for that
 time frame. Id. However, Selby does not appear to have
 adequately raised that argument below, which puts it out-
 side the scope of what is ordinarily appealable under
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 6                                      SELBY v. MCDONOUGH




 

(a). See also Emenaker v. Peake, 

 (Fed. Cir. 2008) (“[A]ppellate courts do not con-
 sider issues that were not raised in the tribunal from which
 the appeal is taken”). We see no reason to diverge from
 that ordinary practice here.
                        CONCLUSION
     We have considered Selby’s remaining arguments and
 find them unpersuasive. For the foregoing reasons, we af-
 firm.
                        AFFIRMED
                           COSTS
 No costs.