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`NOTE: This disposition is nonprecedential.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
`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
`fice of General Counsel, United States Department of Vet-
`erans Affairs, Washington, DC.


`Case: 22-1909 Document: 21 Page: 2 Filed: 11/14/2022
`Before REYNA, SCHALL, and CHEN, Circuit Judges.
`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.
`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.
`“GApp’x” refers to the appendix attached to the
`Government’s Response Brief.


`Case: 22-1909 Document: 21 Page: 3 Filed: 11/14/2022
`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
`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


`Case: 22-1909 Document: 21 Page: 5 Filed: 11/14/2022
`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.
`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.
`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


`Case: 22-1909 Document: 21 Page: 6 Filed: 11/14/2022
`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
`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


`Case: 22-1909 Document: 21 Page: 7 Filed: 11/14/2022
`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


`Case: 22-1909 Document: 21 Page: 8 Filed: 11/14/2022
`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.
`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


`Case: 22-1909 Document: 21 Page: 9 Filed: 11/14/2022
`ankle arthritis, right ankle scar, and tinnitus. For the re-
`maining arguments, we lack jurisdiction.
`No costs.

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