Case: 22-1909 Document: 21 Page: 1 Filed: 11/14/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CYNTHIA A. TORREZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1909
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-7646, Judge Scott Laurer.
______________________
Decided: November 14, 2022
______________________
CYNTHIA A. TORREZ, San Antonio, TX, pro se.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY; BRIAN D. GRIFFIN, ANDREW J. STEINBERG, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________
Case: 22-1909 Document: 21 Page: 2 Filed: 11/14/2022
2 TORREZ v. MCDONOUGH
Before REYNA, SCHALL, and CHEN, Circuit Judges.
PER CURIAM.
Mrs. Torrez appeals a decision of the U.S. Court of Ap-
peals for Veterans Claims that affirmed in part and va-
cated in part the Board of Veterans Appeals’ October 6,
2020 determination on her late husband’s claims for cer-
tain veteran’s disability benefits. For the following reasons,
we affirm the judgment of the U.S. Court of Appeals for
Veterans Claims that affirms in part the Board’s determi-
nation and we decline to review the court’s non-final order
to vacate in part and remand.
BACKGROUND
Mr. Torrez served on active duty in the Air Force from
June 1979 to May 1995. GApp’x 16. 1 One month after his
separation from the Air Force, he sought service connection
claims for various disabilities—including right and left an-
kle disabilities, bilateral hearing loss, a heart condition, a
knee condition, tonsillitis, and seborrheic dermatitis.
Resp. Br. 2–3. In September 1995, the Veterans Affairs
(“VA”) regional office (“RO”) granted service connection
claims with a non-compensable rating for a right ankle con-
dition and bilateral knee tendinitis. Id.; GApp’x 24–26.
The RO, however, denied service connection claims for: bi-
lateral hearing loss for not being a present disability, tin-
nitus for missing an in-service connection, and a heart
condition for being congenital. Id. at 3; GApp’x 18–19. The
RO also denied service connection claims for an abnormal
EKG, left ankle injury, tonsillitis, and seborrheic dermati-
tis as lacking evidence of current disability. Resp. Br. 3.
Mr. Torrez did not appeal the decision and it became final.
1 “GApp’x” refers to the appendix attached to the
Government’s Response Brief.
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TORREZ v. MCDONOUGH 3
In January 2011, Mr. Torrez sought service connection
claims for lung cancer, lumbar spine disability, hyperten-
sion, liver disability, peripheral neuropathy, gastrointesti-
nal disability, mediastinal lymphadenopathy, disability of
the blood-forming organs, reticuloendothelial disability,
agranulocytosis, nasal disability, epistaxis, and hyper-
lipidemia (the “2011 claims”). Resp. Br. 3; GApp’x 20–21.
He also attempted to reopen the denied claims and increase
the disability rating for the granted service-connection con-
ditions. Resp. Br. 3; GApp’x 18–19, 24. In April 2011, the
RO requested additional information from Mr. Torrez.
Resp. Br. 4. Mr. Torrez then underwent a knee and ankle
examination and hearing loss examination by the VA
where the examiner reported service-connected bilateral
tinnitus. Resp. Br. 4; GApp’x 19, 29.
Mr. Torrez died in July 2011 from Stage 4 metastatic
lung cancer with acute hypoxic respiratory failure. GApp’x
30. Mrs. Torrez sought accrued benefits and became the
substitute appellant. Resp. Br. 4; GApp’x 16–17. Shortly
thereafter, the RO had granted service connection claims
for tinnitus with a 10% rating and a right ankle scar with
a non-compensable rating; retained the non-compensable
ratings for right ankle arthritis, hearing loss, and bilateral
knee tendinitis (collectively, the “granted claims”); denied
reopening previously denied claims; denied over a dozen
other claims; and denied service connection claims for Mr.
Torrez’s death. Resp. Br. 4–5; GApp’x 16–17, 24–26.
Mrs. Torrez filed a notice of disagreement with the
April 2013 rating decision, alleging clear and unmistakable
error (“CUE”). Resp. Br. at 5. In June 2015, the Board of
Veterans Appeals (“Board”) found CUE in the September
1995 rating decision and granted service connection claims
for left ear hearing loss but found no CUE in the decision
for the right ear hearing loss, tinnitus, left ankle injury,
tonsillitis, seborrheic dermatitis, systolic heart murmur,
and sinus bradycardia with primacy AV block. Resp. Br. 5;
Case: 22-1909 Document: 21 Page: 4 Filed: 11/14/2022
4 TORREZ v. MCDONOUGH
GApp’x 17–19. The Board remanded the remaining claims
on appeal for further development of the record. Id.
The case returned to the Board and, in May 2018, the
Board again remanded the claims on appeal because the
agency of original jurisdiction (“AOJ”) failed to comply with
the Board’s June 2015 instructions. Resp. Br. 5; GApp’x 8.
The Board’s 2018 decision, however, omitted the allergic
rhinitis claim without explanation. GApp’x 8. The AOJ
then issued a supplemental statement of the case (“SSOC”)
in March 2020 that, too, failed to address the allergic rhi-
nitis claim. Id. That month, a VA medical expert offered
several opinions on Mr. Torrez’s conditions, ultimately
finding that the diagnoses were “less likely than not” re-
lated to any in-service illness and that his service-con-
nected conditions of the 2011 claims and psoriasis,
seborrheic dermatitis, liver condition did not substantially
contribute to his death. Resp. Br. 6; GApp’x 22, 30.
The Board then issued a decision on October 6, 2020,
denying Mrs. Torrez’s service connection claims for: heart
disability, a left ankle disability, tonsillitis, seborrheic der-
matitis, right ear hearing loss, lung cancer, a lumbar spine
disability, peripheral neuropathy, hypertension, “a liver
disability, to include lesions,” a gastrointestinal disability,
mediastinal lymphadenopathy, a “blood forming organ”
disability, a reticuloendothelial disability, agranulocytosis,
a nasal disability, to include epistaxis, a disability mani-
fested by hyperlipidemia, allergic rhinitis, and the cause of
the veteran’s death. GApp’x 1. Finally, the Board denied
Mrs. Torrez’s request to increase rating claims for the
granted claims. Id.
Mrs. Torrez appealed the Board’s decision to the U.S.
Court of Appeals for Veterans Claims (“Veterans Court”).
Before the Veterans Court, the Secretary made several con-
cessions. The Secretary conceded that the Board did not
address materially favorable evidence and failed to support
both its refusal to open the heart disability claim and its
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TORREZ v. MCDONOUGH 5
denial of service connection claims for the 2011 claims and
allergic rhinitis. Resp. Br. 7; GApp’x 2.
The court accepted these concessions and remanded
those claims to the Board, noting that the Board should
consider whether the other disabilities were compensable
medically unexplained chronic illnesses under
38 C.F.R. §
3.317. GApp’x 2. The court also found that the AOJ failed
to issue a SSOC with respect to allergic rhinitis and or-
dered the Board to “remand that claim before readjudicat-
ing it.”
Id. Finally, because Mrs. Torrez’s service
connection claim for Mr. Torrez’s cause of death is inextri-
cably intertwined with the other claims, that was re-
manded as well.
Id. The court affirmed the remainder of
the Board’s decision—the denial of the request to reopen
service connection claims for a left ankle injury, tonsillitis,
seborrheic dermatitis, and right ear hearing loss, and in-
creased rating claims for the granted claims.
Id. at 2–3.
Mrs. Torrez filed this appeal. We have jurisdiction under
38 U.S.C. § 7292.
STANDARD OF REVIEW
Our authority over Veterans Court decisions is limited.
We review the Veterans Court’s legal determinations de
novo. Blubaugh v. McDonald,
773 F.3d 1310, 1312 (Fed.
Cir. 2014). We do not have authority to engage in fact find-
ing.
38 U.S.C. § 7292(d)(1). We must affirm the Veterans
Court unless the decision is “(A) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (B) contrary to constitutional right, power, privilege,
or immunity; (C) in excess of statutory jurisdiction, author-
ity, or limitations, or in violation of a statutory right; or (D)
without observance of procedure required by law.”
Id.
DISCUSSION
On appeal, Mrs. Torrez argues for a higher disability
rating for several conditions and asserts that the “VA will
pay 100% compensation.” Reply Br. 10–11. Mrs. Torrez
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6 TORREZ v. MCDONOUGH
next contends that because she is “unrepresented,” she did
not receive impartial review.
Id. at 15. Finally, she argues
that the RO’s September 1995 rating decision did not com-
ply with
38 C.F.R. §§ 3.159(a)(1), 3.309(a), 3.317, “relevant
38 CFR Part 4 Rating Schedule,” and “Presumptive Service
Connection.” 2
Id. at 2–5, 14.
We begin with several portions of Mrs. Torrez’s appeal
that pertain to the assigned disability rating and to the de-
nial to reopen several claims. Mrs. Torrez only challenges
the factual findings in these issues. This court, however,
does not have jurisdiction over such factual findings or ap-
plications of law to fact.
38 U.S.C. § 7292(d)(2); see also
Conway v. Principi,
353 F.3d 1369, 1372 (Fed. Cir. 2004)
(“[W]hile [this Court] can review questions of law, [it] can-
not review applications of law to fact.”); Beasley v. Shinseki,
709 F.3d 1154, 1158 (Fed. Cir. 2013); McLean v. Wilkie, 780
F. App’x 892, 895 (Fed. Cir. 2019).
Accordingly, we affirm the Veterans Court’s decision to
affirm the Board’s denial of Mrs. Torrez’s request for in-
creased rating claims for service connection claims for bi-
lateral knee tendinitis, right ankle arthritis, right ankle
scar, and tinnitus. Similarly, we affirm the Veterans
Court’s affirmance of the Board’s decision to deny Mrs. Tor-
rez’s request to reopen service connection claims for left an-
kle disability, tonsillitis, seborrheic dermatitis, right ear
2
38 C.F.R. § 3.159(a)(1) relates to the definition of
competent medical evidence; § 3.309(a) lists a series of
chronic diseases subject to the rebuttable presumption of
service connection “although not otherwise established as
incurred in or aggravated by service”; and § 3.317 relates
to compensation for certain disabilities such as undiag-
nosed or unexplained illnesses occurring in Persian Gulf
veterans.
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TORREZ v. MCDONOUGH 7
hearing loss, and the court’s decision to deny increased rat-
ing claims for the granted claims.
Mrs. Torrez argues, for the first time on appeal, that
the Veterans Court did not provide impartial review of her
claims. As a general rule, this court will not consider an
argument raised for the first time on appeal. See Boggs v.
West,
188 F.3d 1335, 1337–38 (Fed. Cir. 1999). This rule
ensures that the parties and tribunal have an opportunity
to provide or respond to all the evidence and relevant is-
sues, as well as avoid unfair surprise on appeal.
Id. This
court has held that it has discretion to entertain arguments
for the first time on appeal, and we do so in this case. See
Mobility Workx, LLC v. Unified Patents, LLC,
15 F.4th
1146, 1151 (Fed. Cir. 2021) (citing Singleton v. Wulff,
428
U.S. 106, 121 (1976) (“The matter of what questions may
be taken up and resolved for the first time on appeal is one
left primarily to the discretion of the courts of appeals, to
be exercised on the facts of individual cases.”). We conclude
this argument lacks merit. The Veterans Court’s opinion
specifically acknowledged that self-represented appellant
arguments are to be construed liberally. It found, however,
that Mrs. Torrez’s evidence neither sufficiently supported
her claim for several disabilities for VA purposes nor satis-
fied her burden to prove prejudicial error. GApp’x 5 (citing
De Perez v. Derwinski,
2 Vet.App. 85, 86 (1992)). As we
understand Mrs. Torrez’s informal brief, she argues a due
process violation. Mrs. Torrez provides no further detail or
support for her claim other than restating her disagree-
ment with the Board’s decision. Our court lacks jurisdic-
tion over assertions that are “constitutional in name only.”
Helfer v. West,
174 F.3d 1332, 1335 (Fed. Cir. 1999). Ac-
cordingly, we dismiss this portion of Mrs. Torrez’s appeal.
Finally, Mrs. Torrez argues that the Secretary and
Board erred by failing to comply with various VA regula-
tions, including
38 C.F.R. §§ 3.309(a), 3.159(a)(1), 3.317,
the Part 4 Rating Schedule, and “presumptive service con-
nection.” This argument is similar to one she made to the
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8 TORREZ v. MCDONOUGH
Board, where she contended that she was entitled to a pre-
sumptive service connection under §§ 3.307 and 3.309. The
Board, however, found no evidence to support diagnosis or
treatment for the conditions within a year of active duty
service. GApp’x 21. The Board also reviewed her claims
for increased disability rating under 38 C.F.R. Part 4 before
denying the claims. Id. at 23–29. After reviewing the
Board’s decision, the Veterans Court vacated and re-
manded several Board conclusions. The Veterans Court re-
manded Mr. Torrez’s heart disability claim and potentially
medically unexplained illness because the Board failed to
comply with § 3.317. GApp’x 2. The Veterans Court va-
cated in part the Board’s October 2020 decision that denied
service connection claims for thirteen conditions and de-
nied a request to reopen service connection claims for a
heart disability, remanding for further development and
re-adjudication. GApp’x 10–11. The Veterans Court also
remanded the claim for allergic rhinitis, ordering the AOJ
to issue a SSOC. Id.
This court generally does not review non-final orders of
the Veterans Court, including remand orders. Williams v.
Principi,
275 F.3d 1361, 1364–65 (Fed. Cir. 2002); Winn v.
Brown,
110 F.3d 56, 57 (Fed. Cir. 1997). Here, there is in-
sufficient finality for purposes of our review over the Vet-
erans Court’s decision to remand several service-
connection claims for further adjudication and develop-
ment. The Veterans Court has the authority to remand for
clarification of the facts.
Id. Accordingly, we decline to re-
view the remanded service connection claims that already
address any potential error of law.
CONCLUSION
We affirm the Veterans Court’s affirmance of the
Board’s decision to deny appellant’s request to reopen ser-
vice connection claims for left ankle disability, tonsillitis,
seborrheic dermatitis, right ear hearing loss, and deny the
increased rating claims for bilateral knee tendinitis, right
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TORREZ v. MCDONOUGH 9
ankle arthritis, right ankle scar, and tinnitus. For the re-
maining arguments, we lack jurisdiction.
AFFIRMED
COSTS
No costs.
