       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
     for the Federal Circuit
              __________________________

             ROGACIANA A. RAMIREZ,
                Claimant-Appellant,

                           v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
              __________________________

                      2010-7079
              __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-2921, Judge Robert N.
Davis.
             ____________________________

              Decided: November 8, 2010
             ____________________________

    ROGACIANA A. RAMIREZ, Olongapo City, Philippines,
pro se.

    P. DAVIS OLIVER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
RAMIREZ   v. DVA                                           2


ney General, JEANNE E. DAVIDSON, Director, and KIRK
MANHARDT, Assistant General. Of counsel on the brief
was DAVID J. BARRONS, Deputy Assistant General Coun-
sel, United States Department of Veterans Affairs, of
Washington, DC
              __________________________

    Before LOURIE, LINN, and MOORE, Circuit Judges.
PER CURIAM.

     Rogaciana A. Ramirez (“Ms. Ramirez”) appeals from
the decision of the United States Court of Appeals for
Veterans Claims (“the Veterans Court”) affirming a
decision of the Board of Veterans’ Appeals (“the Board”),
in which the Board determined that Ms. Ramirez had
failed to submit new and material evidence to reopen a
claim for revocation of the forfeiture of her right to veter-
ans’ benefits under 38 U.S.C. § 6103(a). Ramirez v.
Shinseki, No. 08-2921, 2010 WL 672768 (Vet. App. Feb.
26, 2010). Because Ms. Ramirez’s appeal raises only
factual issues outside this court’s appellate jurisdiction,
we dismiss.

                       BACKGROUND

    Ms. Ramirez’s husband, veteran Ramon J. Ramirez
(“the veteran”), served on active duty in the Army from
February 1941 to March 1948. In 1982, the veteran filed
a request for nonservice-connected pension benefits based
on age, including a claim for additional benefits for four
dependent children. In support of his claim, the veteran
submitted for each child a birth certificate that was
signed by Ms. Ramirez and that showed the veteran and
Ms. Ramirez as the natural parents. The Veterans Ad-
ministration, now the Department of Veterans Affairs,
(“VA”) awarded the veteran pension benefits but withheld
3                                           RAMIREZ   v. DVA


the additional benefits for dependents pending the out-
come of a field investigation. During the investigation,
the veteran admitted in a deposition that the four chil-
dren were not his and Ms. Ramirez’s natural children,
and that Ms. Ramirez had signed and filed inaccurate
birth certificates at the urging of a third party. Ms.
Ramirez confirmed the correctness of the veteran’s testi-
mony. As a result, the VA found that both the veteran
and Ms. Ramirez had “knowingly and intentionally fur-
nished [the VA] with materially false and fraudulent
statements and evidence” in support of a claim for addi-
tional pension benefits, and on April 14, 1983, the VA
terminated Ms. Ramirez’s right to veterans’ benefits
pursuant to 38 U.S.C. § 6103(a). Ramirez, 2010 WL
672768, at *1.

     The veteran died in March 1997, after which Ms. Ra-
mirez filed for dependency and indemnity compensation,
or death benefits. In August 2000, the VA denied the
request, informing Ms. Ramirez that no benefits were
payable because she had forfeited her right to such bene-
fits pursuant to 38 U.S.C. § 6103(a) and that she had not
submitted new and material evidence to reopen a claim
for revocation of the forfeiture. In February 2006, Ms.
Ramirez requested that the VA reopen her claim for death
benefits, submitting three additional items of evidence: a
copy of her marriage certificate, a copy of the veteran’s
death certificate, and a signed letter dated February 8,
2006. The VA Manila Regional Office (“RO”) found that
no new and material evidence had been submitted to
warrant revocation of the forfeiture declared against Ms.
Ramirez.

   Ms. Ramirez appealed the RO’s decision to the Board.
She argued that the veteran’s forfeiture for fraud under
38 U.S.C. § 6103(a) should not be imposed on her as his
RAMIREZ   v. DVA                                         4


surviving spouse and that the RO failed in its duty to
assist under the Veterans Claims Assistance Act
(“VCAA”). On July 16, 2008, the Board held that the
additional evidence presented was not material because it
did not tend to show that Ms. Ramirez had not attempted
to fraudulently deceive the VA as to her and her hus-
band’s true relationship with the four children for whom
veterans’ benefits were claimed. In so holding, the Board
noted that, despite Ms. Ramirez’s arguments to the
contrary, the VA did not impose the initial forfeiture
decision on the veteran alone, but also separately on Ms.
Ramirez.

    The Board also addressed Ms. Ramirez’s VCAA claim
despite concluding that the VCAA does not apply to
claims for revocation of forfeiture. The Board held that
although Ms. Ramirez received “inadequate pre-
adjudicatory notice” for her claim to reopen, the record
reflected that the March 2006 RO decision on appeal
provided “very specific notice” to Ms. Ramirez of the
evidence necessary to substantiate her claim and that the
essential fairness of the process had not been affected.

    Ms. Ramirez appealed to the Veterans Court claiming
that the Board’s decision considering her role in making
false statements to the VA was clear and unmistakable
error. On February 26, 2010, the Veterans Court held
that there was no clear error in the Board’s determination
that Ms. Ramirez had failed to submit new and material
evidence to reopen her claim for revocation of forfeiture.
Ramirez, 2010 WL 672768, at *2. The court stated that
“the Board clearly found that the submitted evidence was
not material, as it did not relate to an unestablished fact
necessary to substantiate the claim, and did not tend to
show that Ms. Ramirez did not attempt to fraudulently
deceive [the] VA,” concluding that “[t]his determination
5                                             RAMIREZ   v. DVA


by the Board complies with the definition of ‘material’ in
38 C.F.R. § 3.156(a).” Id.

    Ms. Ramirez timely appealed to this court. We have
jurisdiction pursuant to 38 U.S.C. § 7292(c).

                        DISCUSSION

    This court’s jurisdiction to review decisions of the
Veterans Court is limited by statute. 38 U.S.C. § 7292.
We “have exclusive jurisdiction to review and decide any
challenge to the validity of any statute or regulation or
any interpretation thereof [by the Veterans Court] . . . ,
and to interpret constitutional and statutory provisions,
to the extent presented and necessary to a decision.” Id.
§ 7292(c). We must hold unlawful and set aside any
regulation or any interpretation thereof relied upon by
the Veterans Court that we find to be “(A) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (B) contrary to constitutional right,
power, privilege, or immunity; (C) in excess of statutory
jurisdiction, authority, or limitations, or in violation of a
statutory right; or (D) without observance of procedure
required by law.” Id. at § 7292(d)(1). We, however, “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.” Id. § 7292(d)(2).

    Ms. Ramirez argues that the fraudulent act of the
veteran found pursuant to 38 U.S.C. § 6103(a) should not
be imposed on her as the veteran’s surviving spouse, and
thus she is entitled to veterans’ benefits. She also argues
that the RO failed in its duty to assist under the VCAA.

   The government responds that because the Veterans
Court did not interpret a statute or regulation but merely
RAMIREZ   v. DVA                                          6


applied the established law concerning veterans’ benefits
to the facts and circumstances of Ms. Ramirez’s case, this
court lacks jurisdiction over her appeal. Specifically, the
government argues that the fact that Ms. Ramirez was
found to have committed a fraudulent act against the VA
and that she has submitted no new and material evidence
to substantiate a claim to the contrary are factual deter-
minations made by the Board, upheld by the Veterans
Court, and not subject to review by this court. The gov-
ernment also argues that the Board’s determination that
the failure to provide pre-adjudicatory notice under the
VCAA was not prejudicial error is also a factual issue
outside this court’s appellate jurisdiction.

    We agree with the government. We first note that the
record does not support Ms. Ramirez’s repeated assertions
that the VA applied 38 U.S.C. § 6103(a) to her based on
the fraudulent acts of her husband; the record shows that
the VA terminated Ms. Ramirez’s right to VA benefits
based on a finding that she, separate from the veteran,
had attempted to deceive the VA. Accordingly, neither
the Board nor the Veterans Court interpreted § 6103(a) as
applying to the surviving spouse of a veteran who had
been found to have forfeited benefits under the statute,
but rather as applying to Ms. Ramirez as the one who
committed fraud. We lack jurisdiction to review the
factual determinations underlying that decision.         38
U.S.C. § 7292(d)(2). We also lack jurisdiction to review
whether Ms. Ramirez submitted new and material evi-
dence to reopen her claim for revocation of the forfeiture
because, as we have held, “whether evidence in a particu-
lar case is ‘new and material’ is either a ‘factual determi-
nation’ under section 7292(d)(2)(A) or the application of
law to ‘the facts of a particular case’ under section
7292(d)(2)(B) and is, thus, not within this court’s appel-
late jurisdiction.” Barnett v. Brown, 83 F.3d 1380, 1383
7                                           RAMIREZ   v. DVA


(Fed. Cir. 1996). Finally, with regard to Ms. Ramirez’s
VCAA claim, we have held that whether the VA complied
with the VACC’s notice requirements, Garrison v. Nichol-
son, 494 F.3d 1366, 1370 (Fed. Cir. 2007), or whether a
VA error was prejudicial, Newhouse v. Nicholson, 497
F.3d 1298, 1302 (Fed. Cir. 2007), are factual issues
squarely outside our jurisdiction. Accordingly, we dismiss
Ms. Ramirez’s appeal for lack of jurisdiction.

                      DISMISSED

                         COSTS

    No costs.
