Alvarez v. Shinseki , 374 F. App'x 977 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-7039
FRANCISCO C. ALVAREZ, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Francisco C. Alvarez, Jr., of Victorville, California, pro se.
Amanda L. Tantum, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Martin F. Hockey, Assistant Director. Of counsel on the brief were David
J. Barrans, Deputy Assistant General Counsel, and Kristiana Brugger, 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
Chief Judge William P. Greene, Jr.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-7039
FRANCISCO C. ALVAREZ JR.
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 08-1337, Chief
Judge William P. Greene, Jr.
______________________________
DECIDED: May 7, 2010
______________________________
Before LOURIE, FRIEDMAN, and LINN, Circuit Judges.
PER CURIAM.
The pro se appellant, Francisco C. Alvarez, Jr., seeks disability benefits for a
bilateral eye disorder, namely his loss of visual acuity during his military service. The
Board of Veterans’ Appeals (“Board”) denied him those benefits, and the United States
Court of Appeals for Veterans Claims (“Veterans Court”) affirmed. Because his appeal
raises only factual issues which we have no jurisdiction to review, we dismiss it.
I
During his four years of military service, Alvarez concededly lost visual acuity.
He attributes this loss to his work as a telecommunications specialist, which involved
reading-intensive, detail-oriented work such as typing, proofreading, and upgrading
manuals.
In denying him benefits, the Board found that he suffered from myopia, or
“nearsightedness,” which is considered a congenital refractive disorder. Under
regulations of the Department of Veterans Affairs (“Department”), “[c]ongenital or
developmental defects, [such as] refractive error of the eye . . . are not diseases or
injuries within the meaning of applicable legislation,” 38 C.F.R. § 3.303(c), and therefore
are not compensable. This court has upheld the validity of that regulation. Terry v.
Principi, 340 F.3d 1378 (Fed. Cir. 2003). The Board stated that “absent superimposed
disease or injury, service connection may not be allowed for a refractive error of the
eye, including myopia, even if visual acuity decreased in service.” Because Alvarez
“expressly testified at his . . . hearing that he did not incur any bilateral eye injury or
trauma during his active service,” the Board denied his claim. The Veterans Court
affirmed, holding that the Board had a “plausible basis for its finding that the
preponderance of the evidence was against the claim, and that decision [was] not
clearly erroneous.”
II
Under the governing statute, our jurisdiction to review decisions of the Veterans
Court is limited to “any challenge to the validity of any statute or regulation or any
interpretation thereof . . . and to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). Except for
constitutional issues, we “may not review . . . a challenge to a factual determination, or
. . . a challenge to a law or regulation as applied to the facts of a particular case.” Id.
2010-7039 2
§ 7292(d)(2). Furthermore, this court cannot review the Department’s determination
that a veteran “did not prove a compensable present disability at the time” of his claim,
because that determination is factual. See Conley v. Peake, 543 F.3d 1301, 1305 (Fed.
Cir. 2008).
Alvarez does not challenge the validity of any statute or regulation, nor does he
contend that this appeal presents any constitutional issue. Instead, he seeks service
connection and disability benefits because he “incurred a vision loss while on active
duty, while performing [his] assigned duties.” The Board held, however, that Alvarez
suffers from myopia, a congenital condition that is not compensable under current law.
This ruling, which involves factual issues, including the application of the Department’s
regulation quoted above to the facts of Alvarez’ case, is one we have no jurisdiction to
review.
CONCLUSION
The appeal is
DISMISSED.
No costs.
2010-7039 3