## Facts

- A Navy servicemember died in a motorcycle accident while on active duty; toxicology showed a blood alcohol level of 0.139%.
- The surviving spouse sought dependency and indemnity compensation under 38 U.S.C. § 1310, asserting the death was service-connected.
- The Board of Veterans’ Appeals found dry-road/clear-weather conditions and no mechanical failure, concluding intoxication was the proximate cause and therefore willful misconduct, defeating the service-connection presumption under 38 U.S.C. § 105(a).
- The surviving spouse argued the “benefit of the doubt” rule in 38 U.S.C. § 5107(b) required resolving close factual questions in her favor.
- The VA denied benefits; the Board affirmed; the Court of Appeals for Veterans Claims (CAVC) affirmed; the Federal Circuit granted rehearing en banc to address § 7292 jurisdiction and prudential limits.

## Issues

1. Under 38 U.S.C. § 7292, what categories of questions fall within the Federal Circuit’s jurisdiction to review CAVC decisions?
2. Even when jurisdiction exists, when should the Federal Circuit decline to consider arguments or legal theories not properly raised before the CAVC?

## Decision

- The en banc Federal Circuit held it has § 7292(a) jurisdiction over: (1) validity of statutes or regulations on which the CAVC decision depended; (2) interpretations of statutes or regulations relied on by the CAVC; (3) validity/interpretation issues raised before the CAVC but not expressly decided, when adoption of the urged position would change the outcome; and (4) other relevant questions of law.
- The court distinguished statutory jurisdiction from prudential issue-preservation rules and applied a general rule against considering new issues first raised on appeal, subject to narrow exceptions.
- The court declined to reach several unpreserved theories (including “negative evidence” and a heightened burden to rebut the § 105(a) presumption) because they were not adequately presented to or decided by the CAVC and no exception applied.
- The court affirmed the CAVC’s judgment upholding denial of benefits.

## Legal Principles

- Under 38 U.S.C. § 7292, the Federal Circuit may review questions of law (including validity and interpretation of statutes/regulations) but not factual determinations.
- A legal issue may be reviewable if the CAVC decision depended on the challenged statutory or regulatory validity/interpretation, including issues raised below but not expressly resolved when outcome-determinative.
- Jurisdictional authority to hear a legal question is distinct from prudential limits on entertaining arguments not preserved in the tribunal below.
- Appellate courts generally will not consider arguments raised for the first time on appeal; exceptions exist but are applied narrowly (e.g., intervening change in law, purely legal issue needing no fact development, limited circumstances involving pro se litigants).

## Conclusion

The Federal Circuit used the appeal to define its review authority in veterans cases under § 7292 and to reinforce issue-preservation limits; applying those prudential rules, it refused to consider several unpreserved legal theories and affirmed the denial of survivor benefits.


Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (en banc)