Lopez v. Wilkie

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GUADALUPE LOPEZ,
Claimant-Appellant
v.
ROBERT WILKIE, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2018-1222
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-3419, Chief Judge Robert N.
Davis.
______________________
Decided: May 2, 2018
______________________
GUADALUPE LOPEZ, San Antonio, TX, pro se.
JANA MOSES, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., L. MISHA
PREHEIM; BRIAN D. GRIFFIN, BRYAN THOMPSON, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 LOPEZ v. WILKIE
______________________
Before NEWMAN, LOURIE, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
Guadalupe Lopez appeals from a decision of the Unit-
ed States Court of Appeals for Veterans Claims affirming
in part and remanding in part the decision of the Board of
Veterans’ Appeals denying certain increased rating
claims, earlier effective date claims, claims to reopen, and
service connection claims. For the reasons discussed
below, we dismiss this appeal for lack of jurisdiction.
BACKGROUND
Mr. Lopez’s long history of service connection claims
began almost fifty years ago. 1 Mr. Lopez served in the
United States Marine Corps from June 1967 to March
1970. During his service, which included time in the
Republic of Vietnam, he sustained fragment wounds to
the left hand with nerve injury. Mr. Lopez’s medical
examination before separation revealed that he had scars
on his head, hand, and leg, and that he suffered from
recurrent headaches.
Mr. Lopez initiated a service connection claim at sep-
aration from the Marine Corps in March 1970 for his
injuries and headaches, including a fragment head
wound, with the Veterans Administration Regional Office
(“RO”). The RO granted his request for service connection
for his injuries to his hand with a 10% rating and a non-
compensable rating for head injuries. In April 1971, Mr.
Lopez filed a service connection claim for head injuries
that caused a nervous condition, tension headaches, and
1 Respondent-Appellee’s Corrected Informal Re-
sponse Brief provides a detailed history of Mr. Lopez’s
claims. Appellee Inf. Resp. at 2–8.
LOPEZ v. WILKIE 3
partial facial paralysis (Bell’s palsy). The RO subsequent-
ly issued a rating decision and supplemental statement
denying the service connection for Bell’s palsy. Mr. Lopez
challenged the RO’s decision in August 1971, and after
additional development of the claim, the Board of Veter-
ans’ Appeals (“Board”) ultimately upheld the RO’s denial
of service connection for Bell’s palsy in October 1973. In
October 1984, Mr. Lopez filed claims to reopen his previ-
ously denied service connection claim and also contended
he suffered from several conditions related to exposure to
Agent Orange in Vietnam. The RO denied his service
connection claim for these conditions in January 1985. In
1997, without appealing the January 1985 decision, Mr.
Lopez again filed to reopen his service connection claims.
The RO denied Mr. Lopez’s 1997 claim on the grounds
that he did not submit any new and material evidence to
justify reopening.
In January 2008, Mr. Lopez sought to increase his
disability ratings for several conditions. The VA subse-
quently afforded Mr. Lopez Compensation and Pension
examinations in June 2008 and July 2009. In August
2009, the RO issued a rating decision addressing twenty-
two claims that granted or continued service connections
for several conditions and denied the remaining claims.
Mr. Lopez filed a Notice of Disagreement with the August
2009 decision, which ultimately led to the United States
Court of Appeals for Veterans Claims (“Veterans Court”)
decision now before this court, although he received
additional examinations and ratings decisions in the
years that followed.
The Board issued a decision on September 23, 2016,
that addressed thirty-one issues. The Board remanded
nine claims to allow for further development and denied
entitlement to the others. On September 7, 2017, the
Veterans Court set aside and remanded portions of the
Board decision denying a disability rating for more than
30% for headaches and coronary artery disease and
4 LOPEZ v. WILKIE
denying service connection for bilateral hip disability, and
affirmed the remainder of the decision. Mr. Lopez timely
appealed to this court.
DISCUSSION
Section 7292 of title 38 limits our jurisdiction in re-
viewing decisions by the Veterans Court. The court lacks
jurisdiction to review “a challenge to a factual determina-
tion” or a “challenge to a law or regulation as applied to
the facts of a particular case,” unless the appeal “presents
a constitutional issue.” 38 U.S.C. § 7292(d). The court
may “review, and ‘hold unlawful and set aside,’ if war-
ranted, ‘any regulation or any interpretation thereof
(other than a determination as to a factual matter) that
was relied upon in the decision of the [Veterans Court].’”
Graves v. Principi, 294 F.3d 1350, 1354 (Fed. Cir. 2002).
Mr. Lopez asserts that the Veterans Court decision
involved the validity or interpretation of a statute or
regulation. Yet Mr. Lopez does not point to any particular
statute or regulation that he claims is invalid or that the
Veterans Court misinterpreted. Instead, Mr. Lopez
argues that the Veterans Court did not properly review
the Board’s application of Molloy v. Brown, 9 Vet. App.
513 (1996), 38 U.S.C. § 7105(C), and “VA promulgated
rules.” Appellant Inf. Br. at 1–2, 4; Appellant Reply at 4.
Despite Mr. Lopez’s contrary assertions, the Veterans
Court reviewed the Board’s factual findings and applied
established law to the facts of Mr. Lopez’s case. The
court’s jurisdiction over Mr. Lopez’s case, therefore, is
limited to constitutional issues.
Mr. Lopez also asserts that the Veterans Court decid-
ed constitutional issues. Again, Mr. Lopez does not point
to any constitutional issue purportedly decided by the
Veterans Court. Mr. Lopez instead argues that the Vet-
erans Court did not properly apply the de novo standard
of review to the Board’s decision and improperly affirmed
the Board’s determination not to reopen previously denied
LOPEZ v. WILKIE 5
claims. Mr. Lopez’s arguments do not present constitu-
tional issues and cannot support jurisdiction here simply
because he characterizes them as such. See Helfer v.
West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Mr. Lopez makes several arguments that pertain to
the merits of his claims, including whether the Board
erred in deciding not to reopen previously denied claims
in light of a June 2009 letter from the VA seeking addi-
tional evidence of his claims. “The question of whether
evidence in a particular case is ‘new and material’ is
either a ‘factual determination’ under sec-
tion 7292(d)(2)(A) or the application of law to ‘the facts of
a particular case’ under section 7292(d)(2)(B) and is, thus,
not within this court’s appellate jurisdiction.” Barnett v.
Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).
Because Mr. Lopez’s arguments all center on the ap-
plication of law to fact and do not present constitutional
issues, the court lacks jurisdiction to hear this appeal.
CONCLUSION
Mr. Lopez’s appeal from the Veterans Court is dis-
missed.
DISMISSED
COSTS
No costs.