Lucy B. Gabriel v. Robert A. McDonald, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LUCY B. GABRIEL,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7091
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1333, Judge Lawrence B.
Hagel.
______________________
Decided: October 14, 2015
______________________
L UCY B. G ABRIEL , Balch Springs, TX, pro se.
ANAND R. SAMBHWANI , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, R OBERT E. K IRSCHMAN, J R.;
BRIAN D. G RIFFIN, BRYAN W. T HOMPSON, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.

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GABRIEL v. MCDONALD 2
______________________
Before O’MALLEY , REYNA, and CHEN, Circuit Judges.
P ER CURIAM .
Lucy Gabriel, the surviving spouse of Bobby Lee Ga-
briel, appeals a decision of the United States Court of
Appeals for Veterans Claims (“Veterans Court”) affirming
a decision by the Board of Veterans’ Appeals (“Board”)
finding that new and material evidence had not been
submitted to reopen a previously denied claim for benefits
based on Mr. Gabriel’s death. Because Ms. Gabriel’s
appeal does not raise an issue of law, we dismiss for lack
of jurisdiction.
BACKGROUND
Mr. Gabriel was a Vietnam-era veteran who served on
active duty in the United States Air Force from May 1961
to October 1965. Mr. Gabriel died in 2002. His death
certificate indicated that his death was likely caused by
pneumonia and diffuse B-cell lymphoma.
In January 2003, Ms. Gabriel filed a claim for de-
pendency and indemnity compensation benefits based on
the cause of Mr. Gabriel’s death. To support her claim,
she provided a statement by Mr. Gabriel that his B-cell
lymphoma was caused by his exposure to Agent Orange
when he worked on planes that dropped Agent Orange
over Vietnam. The Veterans Affairs regional office denied
Ms. Gabriel’s claim. Ms. Gabriel appealed the regional
office’s decision to the Board, and in August 2005, the
Board denied Ms. Gabriel’s claim. The Board found that
no evidence established that Mr. Gabriel served in Vi-
etnam or that Mr. Gabriel was exposed to Agent Orange.
Ms. Gabriel did not appeal that decision to the Veterans
Court.
In December 2011 and again in February 2013, Ms.
Gabriel requested that the regional office reopen her

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GABRIEL v. MCDONALD 3
previously denied claim. Ms. Gabriel continued to assert
that Mr. Gabriel was exposed to Agent Orange during his
Vietnam-era service. To support her claim, she provided
Mr. Gabriel’s service records, two articles discussing
Agent Orange, a letter from the New Jersey Agent Or-
ange Commission, a November 2005 letter from the
United States Army regarding another service member’s
alleged exposure to Agent Orange in Vietnam, and a
personnel record indicating that Mr. Gabriel serviced F-
100 aircraft in Germany. In July 2012, the regional office
declined to reopen Ms. Gabriel’s claim, finding that new
and material evidence had not been submitted. Ms. Ga-
briel appealed that decision to the Board, and the Board
affirmed. Ms. Gabriel’s appeal to the Veterans Court
followed.
The Veterans Court affirmed the Board’s conclusion
that new and material evidence had not been submitted.
The court explained that Ms. Gabriel’s request to reopen
her previously denied claim was based in part on evidence
that was before the Board when it made its August 2005
decision. The Veterans Court also explained that the
additional evidence submitted by Ms. Gabriel was not
new and material because the evidence did not indicate
that Mr. Gabriel was exposed to Agent Orange or that his
B-cell lymphoma was related to his service. The Veterans
Court affirmed the Board’s decision, and Ms. Gabriel’s
appeal to this court followed.
D ISCUSSION
We have jurisdiction under 38 U.S.C. § 7292 to review
decisions of the Veterans Court on issues of law but not on
issues of fact or application of law to fact. Morris v.
Shinseki, 678 F.3d 1346, 1351 (Fed. Cir. 2012) (citing
Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002)
(en banc)). “[W]hether 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

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GABRIEL v. MCDONALD 4
‘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 (Fed. Cir. 1996).
Ms. Gabriel argues that the Veterans Court incorrect-
ly applied the regulation defining new and material
evidence, 38 C.F.R. § 3.156(a), but we find no indication
that the Veterans Court made a legal determination
concerning this regulation. See Forshey, 284 F.3d at 1349
(“interpretation of a statute or regulation occurs when its
meaning is elaborated by the court”). Ms. Gabriel also
asserts that the Veterans Court decided a constitutional
issue, but Ms. Gabriel’s constitutional argument suggests
only that the Veterans Court failed to consider additional
evidence of Mr. Gabriel’s service-connected death. The
Court does not have jurisdiction over factual issues la-
beled as constitutional. Helfer v. West, 174 F.3d 1332,
1335 (Fed. Cir. 1999) (“characterization of . . . [a] question
as constitutional in nature does not confer upon us juris-
diction that we otherwise lack”). The Veterans Court
decision thus raises no legal issues within our jurisdic-
tion.
DISMISSED
COSTS
No costs.

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