Case: 22-1897 Document: 18 Page: 1 Filed: 03/16/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROLANDO E. ONOFRE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1897
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-2711, Judge Joseph L. Falvey,
Jr.
______________________
Decided: March 16, 2023
______________________
ROLANDO E. ONOFRE, San Antonio, TX, pro se.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY.
______________________
Case: 22-1897 Document: 18 Page: 2 Filed: 03/16/2023
2 ONOFRE v. MCDONOUGH
Before DYK, LINN, and CHEN, Circuit Judges.
PER CURIAM.
Rolando E. Onofre appeals a decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court) affirming a decision of the Board of Veterans’ Ap-
peals (Board) denying service connection for cardiovascular
disease and hypertension. For the reasons below, we af-
firm the Veterans Court’s decision as to Mr. Onofre’s car-
diovascular disease claim, vacate and remand the Veterans
Court’s decision as to the hypertension claim, and dismiss
the parts of Mr. Onofre’s appeal over which we lack juris-
diction.
BACKGROUND
Mr. Onofre served in Vietnam from September 1970 to
September 1971. Onofre v. McDonough, No. 21-2711,
2022
WL 214508, at *1 (Vet. App. Jan. 25, 2022) (Veterans Court
Decision). In 2008, he filed claims for cardiovascular dis-
ease and hypertension.
Id. After multiple examinations
and remands, the Department of Veterans’ Affairs (VA) de-
termined that Mr. Onofre had paroxysmal atrial fibrilla-
tion (a cardiovascular disease) and hypertension but
denied his claims as not service connected.
Id. at *1–2. In
its most recent decision, the Board explained that Mr. On-
ofre was presumptively exposed to Agent Orange while
serving in Vietnam and that service connection for post-
traumatic stress disorder (PTSD) was established, but the
Board again denied service connection for cardiovascular
disease and hypertension. Id. at *2. The Veterans Court
affirmed, determining that the Board provided adequate
reasons for its decision. Id. at *1, *4. This appeal followed.
DISCUSSION
Our authority to review decisions of the Veterans Court
is limited by statute. Goodman v. Shulkin,
870 F.3d 1383,
1385 (Fed. Cir. 2017). We may “review and decide any
challenge to the validity of any statute or regulation or any
Case: 22-1897 Document: 18 Page: 3 Filed: 03/16/2023
ONOFRE v. MCDONOUGH 3
interpretation thereof . . . and . . . interpret constitutional
and statutory provisions” to the extent they are necessary
to a decision.
38 U.S.C. § 7292(c). Except to the extent an
appeal presents a constitutional issue, we may not review
a challenge to a factual determination or the application of
a law or regulation to the facts of a particular case.
Id.
§ 7292(d)(2).
Mr. Onofre appears to argue that the Veterans Court
erred in interpreting
38 C.F.R. § 3.309(e) to exclude parox-
ysmal atrial fibrillation and hypertension from presump-
tive service connection for herbicide exposure. Informal
Br. 1–2. We disagree. Section 3.309(e) lists certain dis-
eases as presumptively service connected if the veteran
was exposed to herbicides during active service, none of
which include paroxysmal atrial fibrillation and hyperten-
sion.
38 C.F.R. § 3.309(e) (2021). The cardiovascular con-
dition “ischemic heart disease” is listed, but “ischemic
heart disease does not include hypertension.”
Id. § 3.309(e)
n.2. Thus, the Veterans Court properly interpreted
§ 3.309(e) to exclude paroxysmal atrial fibrillation and hy-
pertension.
After the Veterans Court’s decision, however, Congress
amended the list of conditions for which service connection
following herbicide exposure may be statutorily presumed
to include hypertension. Honoring our PACT Act of 2022,
Pub. L. No. 117-678, § 404,
136 Stat. 1759, 1782 (codified
at
38 U.S.C. § 1116(a)(2)). In light of this recent change in
the law, the Secretary recommends the court either: (1) af-
firm or dismiss the appeal for both the paroxysmal atrial
fibrillation and hypertension claims; or (2) affirm or dis-
miss the paroxysmal atrial fibrillation claim but remand
the hypertension claim for further consideration under the
PACT Act. Informal Resp. Br. 7–8, 8 n.2. Under the cir-
cumstances, we think the government’s second recommen-
dation is appropriate, and thus we remand Mr. Onofre’s
hypertension claim for further consideration in light of the
amended statute.
Case: 22-1897 Document: 18 Page: 4 Filed: 03/16/2023
4 ONOFRE v. MCDONOUGH
To the extent Mr. Onofre argues that the record shows
he proved service connection (either directly or secondary)
for paroxysmal atrial fibrillation, hypertension, or any dis-
ease listed in § 3.309(e), those arguments are directed to
findings of fact or the application of regulation to the
facts—arguments over which we lack jurisdiction. See
38
U.S.C. § 7292(d)(2).
CONCLUSION
We have considered Mr. Onofre’s remaining arguments
but find them unpersuasive. Accordingly, we affirm the
Veterans Court’s decision as to the paroxysmal atrial fibril-
lation claim, vacate and remand the Veterans Court’s deci-
sion as to the hypertension claim, and dismiss the parts of
Mr. Onofre’s appeal over which we lack jurisdiction.
AFFIRMED-IN-PART, VACATED-IN-PART,
DISMISSED-IN-PART, AND REMANDED
COSTS
No costs.
