                        Note: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                       2008-7038


                              ROMANA M. DACALDACAL,

                                                              Claimant-Appellant,

                                            v.

               JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                              Respondent-Appellee.


       Romana M. Dacaldacal, of Poblacion Canlaon City, Negros Oriental, Philippines,
pro se.

       Matthew H. Solomson, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney
General; Jeanne E. Davidson, Director; and Kirk T. Manhardt, Assistant Director. Of
counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and
Martie S. Adelman, Attorney, Office of the General Counsel, United States Department
of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Robert N. Davis
                        Note: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                        2008-7038

                              ROMANA M. DACALDACAL,

                                                      Claimant-Appellant,


                                            v.

                 JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                       Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 04-1669, Judge
Robert N. Davis.

                            ___________________________

                              DECIDED: June 12, 2008
                            ___________________________

Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit
Judge.

PER CURIAM.


       The United States Court of Appeals for Veterans Claims upheld the denial of Ms.

Romana M. Dacaldacal’s claim for veterans benefits.            Because Ms. Dacaldacal

challenges only factual determinations that were before the Veterans Court or the

court’s application of law to the facts of her case, this appeal falls outside this court’s

jurisdiction. This court therefore dismisses her appeal.
                                                I

      Ms. Dacaldacal seeks benefits based on the death of her husband, Mr. Margarito

P. Dacaldacal. Ms. Dacaldacal submits that her husband served in the 71st Division of

the Philippine Commonwealth Army during World War II. According to documentation

provided by the Philippines Armed Forces, Mr. Dacaldacal was proclaimed missing in

action and is presumed dead.

      In May 1951, based on a November 1947 request by the Manila, Philippines,

Department of Veterans Affairs (VA) regional office (RO), the U.S. Department of the

Army certified that Mr. Dacaldacal did not serve in any recognized guerrilla service or in

the Philippine Commonwealth Army in the service of the Armed Forces of the United

States. Without any recognized military service, the RO denied Ms. Dacaldacal’s claim.

      Ms. Dacaldacal renewed her claim for VA benefits in September 1985, submitting

documentation from the Philippines Armed Forces indicating that Mr. Dacaldacal served

with the 71st Division of the Philippines Army during World War II. The RO denied

Ms. Dacaldacal’s renewed claim in July 1990.         The RO denied another claim in

February 1991.

      In November 1991, the RO requested that the Department of the Army

reexamine its records to determine whether Mr. Dacaldacal had recognized service.

The Department of the Army again certified that Mr. Dacaldacal did not serve in any

recognized guerrilla service or in the Philippine Commonwealth Army in the service of

the Armed Forces of the United States.

      In 2000 and 2002, Ms. Dacaldacal filed requests to reopen her previously denied

claims. The RO denied these requests, explaining that the documentation from the




2008-7038                                   2
Philippines Armed Forces was insufficient without a certification of recognized service

from the U.S. Department of the Army. The appellant timely filed an appeal to the

Board challenging the RO’s refusal to reopen her claims.

      Ms. Dacaldacal was subsequently provided notice of the information and

evidence necessary to substantiate her claim for VA benefits in August 2003 under the

Veterans Claims Assistance Act of 2000, 38 U.S.C. § 5103(a). In response to this

notice, Ms. Dacaldacal acknowledged that she did not have additional information or

evidence to support her claim.

      Although the VA’s notice was untimely—after, rather than before, the denial of

Ms. Dacaldacal’s requests to reopen her claims—the Board’s June 21, 2004, decision

found that the error was harmless, particularly in light of Ms. Dacaldacal concession that

she could not provide additional evidence to substantiate her husband’s military service.

As such, the Board held that Ms. Dacaldacal was not eligible for VA benefits.

      The Veterans Court affirmed the Board’s factual determinations. In its decision,

the court considered Ms. Dacaldacal’s argument that the VA did not provide proper

notice regarding the information and evidence necessary to substantiate her claim as

required under 38 U.S.C. § 5103(a). Applying the notice requirement to the facts of this

case, the court recognized that timing errors can be cured and held that Ms. Dacaldacal

was not prejudiced by the VA’s untimely notice.

      Ms. Dacaldacal timely appealed to this court.         On appeal, Ms. Dacaldacal

requests reconsideration of Mr. Dacaldacal’s service in the 71st Division of the

Philippines Army during World War for purposes of eligibility for VA benefits.




2008-7038                                   3
                                              II

       This court has limited jurisdiction to review the decisions of the Veterans Court.

38 U.S.C. §7292. As proscribed by 38 U.S.C. § 7292(d)(2), except for constitutional

issues, the Court of Appeals “may not review any challenge to a factual determination or

any challenge to a law or regulation as applied to the facts of a particular case.”

Buchannan v. Nicholson, 451 F.3d 1331, 1334 (Fed. Cir. 2006). This court has also

held that the VA does not err by accepting as conclusive and binding the decision of a

service department to certify, or not to certify, that a Philippine veteran had service

eligible for VA benefits. Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).

       This case is indistinguishable from Soria. Thus, the Veterans Court did not err by

affirming the VA’s denial of benefits due to the Army’s decision not to certify Mr.

Dacaldacal’s service, and this court lacks jurisdiction to review the Army’s decision.

Further, this court does not have jurisdiction to find that the evidence establishes eligible

service, or to review the Veterans Court’s application of law to fact in its decision that

the lack of Army certification here is fatal to Ms. Dacaldacal’s claim.

       For these reasons, this appeal is dismissed for lack of jurisdiction.

                                       DISMISSED



                                          COSTS

       Each party shall bear its own costs.




2008-7038                                     4
