                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                     2008-7001



                                  CATHY WOLFE,

                                                    Claimant-Appellant,

                                         v.


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

                                                    Respondent-Appellee.



      David D’Zurilla, Schwegman, Lundberg & Woessner, P.A., of Minneapolis,
Minnesota, argued for claimant-appellant.

       Meredyth D. Cohen, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney
General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director.
Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and
Tracey P. Warren, 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                      NOTE: This disposition is nonprecedential.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


                                       2008-7001

                                    CATHY WOLFE,

                                                       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 case no. 05-1462, Judge Robert N. Davis.

                              _______________________

                               DECIDED: June 16, 2008
                             ________________________

Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.

CLEVENGER, Senior Circuit Judge.

      Cathy Wolfe appeals from the final decision of the United States Court of

Appeals for Veterans Claims (“Veterans Court”) which denied her request for an earlier

effective date for her claim for death and indemnity compensation (“DIC”) on account of

the death of her husband, a veteran. We dismiss the appeal for lack of jurisdiction.

                                            I

      This court has limited jurisdiction to review a decision of the Veterans Court. We

are empowered to review the validity or interpretation of any law applied by the

Veterans Court. 38 U.S.C. § 7292(a)(2000). But absent a constitutional issue (and
none such is involved in this appeal), we lack jurisdiction to review factual

determinations in decisions of the Veterans Court. Moody v. Principi, 360 F.3d 1306,

1310 (Fed. Cir. 2004).

                                            II

       In this case, the question is whether Mrs. Wolfe is entitled to an earlier effective

date for her DIC claim than August 1, 1999, which is the date assigned to her by the

Department of Veterans Affairs (“agency”) after she filed a written claim for DIC in June

of 2000. Her claim to an earlier date stems from the fact that she informed the agency

by telephone on January 14, 1994, that her husband had died. In that telephone call,

she did not claim any benefit on account of his death. Her telephone call was duly

recorded by a regional office of the agency by a written report of contact, which simply

noted that Robert A. Wolfe had died on January 10, 1994.         If her telephone call, as

memorialized by the report of contact, qualifies as a claim for DIC benefits, she could

earn an earlier effective date.

       Claims for benefits need not be formal. The agency’s regulations permit informal

claims, but the pertinent regulation specifies that an informal claim “must identify the

benefit sought.” 38 C.F.R. § 3.155(a).

       The Veterans Court determined as a matter of fact that the combination of Mrs.

Wolfe’s telephone call and the consequent report of contact did not identify the benefit

sought. Although Mrs. Wolfe contests this finding in her appeal to this court, the limits

on our jurisdiction stop us from assessing the facts differently from the Veterans Court.

       In the Veterans Court and before us, Mrs. Wolfe also argues that she may gain

an earlier effective date based on another agency regulation. Section 3.150(b) of Title




2008-7001                                   2
38 provides that when the agency receives notice of a veteran's death (as it did here as

a result of Mrs. Wolfe’s telephone call), the agency will send the appropriate form to any

dependent who has “apparent entitlement” to compensation. Mrs. Wolfe contends that

at the time of her call to the agency, she had apparent entitlement to DIC compensation

because the agency was considering adoption of a regulation that would have provided

her with that entitlement. The Veterans Court considered Mrs. Wolfe’s contention, but

rejected it on the ground that, on the facts of her case, she had failed to show apparent

entitlement to DIC benefits as of the date of her telephone call.

       In Westberry v. Principi, 255 F.3d 1377 (Fed. Cir. 2001), this court was called

upon to interpret the language of Section 3.150(b). We held that “apparent entitlement”

requires that the entitlement be discernible from the agency’s file that the claimant

(here, Mrs. Wolfe) meets basic eligibility requirements. 255 F.3d at 1382. Also, the

benefit sought must be more than “potential” or “possible.” Id. Because we were called

upon to decide between competing interpretations of the regulation in the Westberry

appeal, we had jurisdiction to do so.

       In this case, however, Mrs. Wolfe is not challenging the interpretation of the

regulation laid down in Westberry. Instead, she is asking this court to review the factual

decision of the Veterans Court that in her case she had not shown apparent entitlement

to DIC benefits as of the date of her call to the agency. For the reasons set forth above,

we lack jurisdiction to review the decision of the Veterans Court on this issue.

       Without authority to overcall the Veterans Court on the grounds presented by

Mrs. Wolfe, we dismiss the appeal.




2008-7001                                    3
                 COSTS

     No costs.




2008-7001          4
