Before Plager, Circuit Judge, Friedman, Senior Circuit Judge, and
Schall, Circuit Judge.
The opinion of the court was delivered by: Friedman, Senior Circuit Judge.
Appealed from: United States Court of Appeals for Veterans Claims Judge Ronald M. Holdaway
The primary issue in this appeal is whether the Court of Veterans Appeals (the name of which was changed to the Court of Appeals for Veterans Claims on March 1, 1999) correctly held that an informal claim for benefits filed with the Department of Veterans Affairs (Department) must be in writing. We affirm.
The appellant Rodriguez's deceased husband served in the Army from 1951 to 1953. In August 1979, following his death, Rodriguez filed with the Department's regional office in San Juan, Puerto Rico an application for a surviving spouse's pension. In 1980 the regional office denied the claim because Social Security benefits that Rodriguez and her daughter were receiving exceeded the permissible maximum under the pension provisions. Rodriguez did not appeal that decision.
Rodriguez asserts that in 1986 she received a notice from the Social Security Administration stating that her Social Security benefits would terminate when her daughter turned sixteen in February 1987, but that her daughter's would continue until the daughter became eighteen. She states that after her daughter's birthday, she visited the Department's San Juan regional office, showed them the letter and requested a surviving spouse's pension, but was told she was not entitled to it because, despite the termination of her Social Security benefits, her daughter would continue to receive them. She further states that she returned to the San Juan office four times, and received the same information.
In March 1990 Rodriguez filed a written application for a pension with the Department's Chicago regional office, which forwarded it to the San Juan office. The latter office awarded her a pension effective April 1, 1990. She filed a notice of disagreement (the method for appealing such a decision), alleging that the effective date of her benefits should have been February 1987, when her Social Security benefits ended and she visited the San Juan office to ask about a surviving spouse's pension. After a hearing, the hearing officer in the San Juan regional office held that since there was no evidence that Rodriguez had filed a written claim for benefits before 1990, April 1, 1990 was the proper effective date for her benefits.
The Board of Veterans Appeals affirmed on the ground that "the record does not show that [Rodriguez] filed a reopened claim until March 1990." The Court of Veterans Appeals, in a single-Judge decision, affirmed, and a three-Judge panel, with a partial Dissent, denied review of that decision. The court held that "[t]here is no evidence in the record that prior to March 1990, Rodriguez submitted a written communication that expressed her intent to apply for benefits" - the court ruled that the letter from the Social Security Administration, the only writing Rodriguez allegedly presented, would not suffice as a written claim because it "would not contain language expressing [Rodriguez's] belief in entitlement to benefits." The court also rejected Rodriguez's claim that the Secretary violated his statutory duty under 38 U.S.C. § 5102 and § 7702(d) by failing to provide her with "aid and assistance," based on his failure to provide her with an application form for filing a claim in 1987 and failing to help her prepare and file that claim.
A. The jurisdiction of this court over appeals from the Court of Veterans Appeals is limited "to review[ing] and decid[ing] any challenge to the validity of any statute or regulation or any interpretation thereof" "that was relied on by the Court in making the decision." 38 U.S.C. § 7292(c), (a) (1994). Conversely, Section 7292(d)(2) states:
Except to the extent that an appeal . . . presents a constitutional issue, the Court of Appeals 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.
In his brief the Secretary argued that we lack jurisdiction over this appeal "[b]ecause Ms. Rodriguez's appeal challenges only the application by the CVA to the facts of her case." At oral argument, however, he retreated from this position and acknowledged that we have jurisdiction insofar as Rodriguez contends that under the Department's regulations an informal claim need not be in writing.
The Secretary's retreat was well advised. Whether the regulations require that an informal claim be written involves the interpretation of the regulation, not the application of the regulation to the particular facts here. We therefore have jurisdiction over that issue. As we explain below, however, some of Rodriguez's other contentions do involve the application of the statutes and regulations to the facts here and we therefore have no jurisdiction to adjudicate them.
B. The statute governing veterans benefits provides that "[a] specific claim in the form prescribed by the [the Secretary of Veterans Affairs] . . . must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the [Secretary]." 38 U.S.C. § 3001(a) (1982) (current version at id. § 5101(a)). The statute further provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award . . . ...