Case: 21-1885 Document: 20 Page: 1 Filed: 08/12/2022
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`NOTE: This disposition is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`DANIEL GONZALEZ,
`Claimant-Appellant
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`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
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`2021-1885
`______________________
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`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 19-8244, Judge Joseph L. Falvey,
`Jr.
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`______________________
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`Decided: August 12, 2022
`______________________
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`DANIEL GONZALEZ, San Antonio, TX, pro se.
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` VIJAYA SURAMPUDI, Commercial Litigation Branch,
`Civil Division, United States Department of Justice,
`Washington, DC,
`for
`respondent-appellee.
` Also
`represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
`LOREN MISHA PREHEIM; CHRISTINA LYNN GREGG, Y. KEN
`LEE, Office of General Counsel, United States Department
`of Veterans Affairs, Washington, DC.
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`

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`Case: 21-1885 Document: 20 Page: 2 Filed: 08/12/2022
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`GONZALEZ v. MCDONOUGH
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`2
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` ______________________
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`Before NEWMAN, REYNA, and CUNNINGHAM, Circuit
`Judges.
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`NEWMAN, Circuit Judge.
` The United States Court of Appeals for Veterans
`Claims (“Veterans Court”) affirmed the decision of the
`Board of Veterans’ Appeals (“the Board”), denying Vietnam
`veteran Daniel Gonzalez’s claim for service connection for
`ischemic heart disease (IHD). On finding that Mr.
`Gonzalez did not have IHD or any other ailment listed in
`the regulation governing presumptive service connection,
`the Board and the Veterans Court denied Mr. Gonzalez’s
`petition for veterans benefits. Their rulings are in
`accordance with law, and are affirmed.
`STATUTES AND REGULATIONS
`38 U.S.C. § 1110 provides that a veteran shall be
`compensated “[f]or disability resulting from personal
`injury suffered or disease contracted in line of duty, or for
`aggravation of a preexisting injury suffered or disease
`contracted in line of duty.”
`38 C.F.R. § 3.303(c) states that “congenital and
`developmental defects, refractive error of the eye,
`personality disorders and mental deficiency as such are not
`diseases or injuries within the meaning of applicable
`legislation.” See Morris v. Shinseki, 678 F.3d 1346, 1353
`(Fed. Cir. 2012).
`38 U.S.C. § 1116 establishes a presumption of service
`connection for certain ailments associated with exposure to
`toxic materials such as Agent Orange, as follows:
`38 U.S.C. § 1116 – Presumptions of service
`connection for diseases associated with exposure to
`certain herbicide agents; presumption of exposure
`for veterans who served in the Republic of Vietnam.
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`GONZALEZ v. MCDONOUGH
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`(a)(1) . . .
`(A) a disease specified in paragraph (2) of this
`subsection becoming manifest as specified in that
`paragraph in a veteran who, during active military,
`naval, or air service, served in the Republic of
`Vietnam during the period beginning on January
`9, 1962, and ending on May 7, 1975; and
`(B) each additional disease (if any) that (i) the
`Secretary determines in regulations prescribed
`under this section warrants a presumption of
`service-connection . . .
`[the specified disease] shall be considered to have
`been incurred in or aggravated by such service,
`notwithstanding that there is no record of evidence
`of such disease during the period of such service.
`In addition to the diseases listed in U.S.C. § 1116(a)(2), VA
`regulation 38 C.F.R. § 3.309 specifies other diseases that
`are presumed to be service connected due to exposure to
`toxic agents such as Agent Orange, which the United
`States used for tactical purposes in Vietnam. 38 CFR
`§ 3.309(e) specifically lists IHD as a “[d]isease associated
`with exposure to certain herbicide agents.” Relevant to
`this appeal, a Chiari network condition is not listed
`anywhere in 38 C.F.R. § 3.309 or 38 U.S.C. § 1116.
`38 C.F.R. § 3.303(c) excludes
`“congenital or
`developmental defects” from “applicable legislation,” and
`guides the determination of congenital defects:
`(c) Pre-service disabilities noted in service.
`There are medical principles so universally
`recognized as to constitute
`fact
`(clear and
`unmistakable proof), and when in accordance with
`these principles existence of a disability prior to
`service
`is
`established, no
`additional
`or
`confirmatory evidence is necessary. . . . Congenital
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`Case: 21-1885 Document: 20 Page: 4 Filed: 08/12/2022
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`GONZALEZ v. MCDONOUGH
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`or developmental defects . . . are not diseases or
`injuries within
`the meaning of applicable
`legislation.
`This appeal focuses on the determination of congenital
`defects, and the statutory treatment of such determination.
`BACKGROUND
`In January 2011 Mr. Gonzalez filed a claim for
`compensation
`for IHD, drawing on
`the statutory
`presumption of service connection in 38 U.S.C. § 1116. The
`VA obtained a medical examination, and the examiner
`found that Mr. Gonzalez had a previously undiagnosed
`Chiari network condition.
` During a subsequent
`examination in June 2011, another examiner confirmed
`that Mr. Gonzalez had a Chiari network condition but
`found no evidence of IHD.
`Accepting this medical evidence, the VA found that Mr.
`Gonzalez did not have IHD. Reg’l Off. Rating Dec. (Dep’t
`of Vet. Aff. July 15, 2011) at 2; SAppx34. The VA regional
`office denied Mr. Gonzalez’s claim, ruling that he did not
`qualify for the statutory presumption of service connection
`because a Chiari network condition was not listed in the
`statute and regulation.
`Mr. Gonzalez appealed to the Board, arguing that the
`Chiari network condition met the medical definition of IHD
`because the Chiari network contributed to an inadequate
`supply of blood and oxygen. The Board obtained another
`medical examination, and the examiner confirmed the
`Chiari network as located in Mr. Gonzalez’s right atrium,
`consisting of “net-like structures near the opening of the
`inferior vena cava and coronary sinus.” The examiner
`stated that a “Chiari network is a congenital defect” and “is
`a congenital structure [that] is not an acquired condition,
`unlike ischemic heart disease.” The examiner explained
`that the Chiari network “is rarely of clinical significance
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`GONZALEZ v. MCDONOUGH
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`and seldom diagnosed,” did not develop from exposure to
`any substance, and did not cause IHD.
`The Board in its opinion distinguished a “defect” from
`a “disease” as these terms are used in 38 C.F.R. § 3.303.
`The Board explained that a disease could be acquired or
`result from conditions during service, whereas a defect is
`present independent of service conditions. The medical
`opinions reported no evidence to suggest a relation between
`Mr. Gonzalez’s Chiari network condition and his IHD.
`Although Mr. Gonzalez submitted medical publications
`that suggested a link between a Chiari network condition
`and IHD, the Board found that service connection was not
`shown, and the presumption of service connection was not
`applicable to this congenital defect, finding that (“service
`connection for the diagnosed Chiari network condition is
`not warranted on either a direct or presumptive basis. The
`Veterans Health Administration examiner provided expert
`opinion that Chiari network is a congenital defect, and
`further opined that this defect did not undergo additional
`disability as a result of superimposed injury in service.”
`The Board applied 38 C.F.R. § 3.303(c), which excludes
`“congenital defects” from the presumption of service
`connection, and relied on the medical opinions that a
`Chiari network is a “defect,” not a “disease.” The Board
`denied Mr. Gonzalez’s claim, and he appealed to the
`Veterans Court. The Veterans Court found that the
`Board’s findings and rulings were not clearly erroneous,
`and affirmed that Mr. Gonzalez was not eligible for
`presumptive service connection. This appeal followed.
`DISCUSSION
`The Federal Circuit’s authority to review decisions of
`the Veterans Court is governed by 38 U.S.C. § 7292(a).
`This statute authorizes our review of a decision “on a rule
`of
`law or of any statute or regulation . . . or any
`interpretation thereof . . . that was relied on by the
`[Veterans Court] in making the decision.” In Forshey v.
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`GONZALEZ v. MCDONOUGH
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`Principi, 284 F.3d 1335 (Fed. Cir. 2002) (en banc), this
`court elaborated on situations in which § 7292(a) confers
`appellate review authority, as follows:
`(1) issues concerning the validity of statutes or
`regulations on which the decision of the Court of
`Appeals for Veterans Claims depended; (2) issues
`of interpretation if the Court of Appeals for
`Veterans Claims elaborated the meaning of a
`statute or regulation and the decision depended on
`that interpretation; and (3) issues of validity or
`interpretation raised before the Court of Appeals
`for Veterans Claims but not decided, if the decision
`would have been altered by adopting the position
`that was urged.
`Id. at 1338 (superseded on other grounds by Veterans
`Benefits Act of 2002 Pub. L. No. 107—330 § 402(a) 116
`Stat. 2820, 2832 (2002)). Absent a constitutional issue, this
`court does not have authority to review decisions that are
`based on challenges to a factual determination or to a
`regulation as applied to the facts of a particular case. 38
`U.S.C. § 7292(d)(2).
`The Board, affirmed by the Veterans Court, applied 38
`C.F.R. § 3.303(c) and 38 U.S.C. § 1110 and held that the
`undisputed congenital nature of the Chiari network
`condition precludes the presumption of service connection.
`Mr. Gonzalez argues that as a matter of statutory intent,
`illustrated by the already far-reaching scope of § 1116, the
`regulatory gap for the rare Chiari network condition should
`not exclude this condition from the purpose and scope of
`§§ 1110 and 1116. He argues that fidelity to the legislative
`purpose warrants judicial remedy, to include the Chiari
`network condition as a qualifying ailment for presumptive
`purposes. Mr. Gonzalez asks this court to take corrective
`action in the interest of fairness and in consideration of the
`policy of veterans’ preference.
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`The government states that the statute and regulation
`are clear, and that neither the VA nor courts have the
`authority to depart from the legislated rules. The
`government points out that Congress authorized and
`contemplated adjustments to § 1110, and in Terry v.
`Principi, 340 F.3d 1378 (Fed. Cir. 2003), this court
`confirmed the authority of the VA to specify which diseases
`qualify for the presumption of service connection. The
`record shows that the list is periodically enlarged. In
`Terry, the court held that the distinction between “disease”
`and “defect” is appropriate in the context of this legislation,
`and the court reaffirmed that a defect is not of itself service
`connected. Id. at 1386.
` Mr. Gonzalez also refers to the “presumption of
`soundness” of the veteran on entry into service, as part of
`the obligation to favor the veteran. He cites the
`administrative and adjudicatory obligation to favor the
`veteran
`in matters of statutory construction and
`application. It is noted, however, that the presumption of
`soundness is limited to compensation for an injury or
`disease contracted or aggravated in the line of duty. See
`Terry, 340 F.3d at 1386 (“[W]hen sections 1110 and 1111
`are read together, ‘the term defect in section 1111
`necessarily means a defect that amounts to or arises from
`disease or injury.’”) (quoting Winn v. Brown, 8 Vet. App.
`510, 516 (1996)).
`the constitutional
`Mr. Gonzalez also presents
`argument that the Veterans Court and the Board deprived
`him of fair and equal treatment, and due process of law.
`These arguments are focused on the finding that the Chiari
`network condition is not a “disease,” as required by § 1110.
`This factual finding is not within our review authority. An
`arguably unfair result does not
`thereby acquire
`constitutional dimension. See Helfer v. West, 174 F.3d.
`1332, 1335 (Fed. Cir. 1999) (finding that the court does not
`have
`jurisdiction over
`factual aspects
`that are
`“constitutional in name only”).
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`GONZALEZ v. MCDONOUGH
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`To the extent Mr. Gonzalez challenges the factual
`question of whether the Chiari network condition is a
`disease or a defect under 38 C.F.R. § 3.303(c) and 38 U.S.C.
`§ 1110, we lack jurisdiction. On the statutory definition of
`eligibility for the presumption of service connection, and
`the undisputed medical facts, there is no basis for
`departing from the decision of the Veterans Court.
`CONCLUSION
`We conclude that the Veterans Court’s decision is in
`accordance with statute, regulation, and precedent. The
`decision is affirmed.
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`AFFIRMED
`Each party shall bear its costs.
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