NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GILBERTO TORREZ,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1124
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1528, Judge Robert N. Davis.
______________________
Decided: February 9, 2016
______________________
GILBERTO TORREZ, San Antonio, TX, pro se.
JESSICA R. TOPLIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER; BRIAN D. GRIFFIN, DEREK SCADDEN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
2 TORREZ v. MCDONALD
Before REYNA, BRYSON, and CHEN, Circuit Judges.
PER CURIAM.
Gilberto Torrez seeks review of the decision of the
United States Court of Appeals for Veterans Claims
(Veterans Court) affirming the decision of the Board of
Veterans’ Appeals (Board). For the reasons stated below,
we dismiss Mr. Torrez’ appeal for lack of jurisdiction and,
to the extent that his appeal makes out a constitutional
claim over which we would have jurisdiction, we reject
that claim.
BACKGROUND
Mr. Torrez served on active duty in the U.S. Army
from August 1970 to November 1991. He twice sought
benefits related to service-connected injuries. First, he
claimed a right elbow injury, left elbow pain, a left knee
injury, right knee pain, chronic sinusitis, sinus bradycar-
dia, bilateral hearing loss, hypertension, elevated choles-
terol, lumbosacral pain, upper respiratory infections,
prostatitis, and pes planus. The Department of Veterans
Affairs regional office denied those claims in December
1992. Because Mr. Torrez did not file a notice of disa-
greement or submit new and material evidence within the
one-year period to do so, this decision became final. See
38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 3.156, 20.302(a).
Second, Mr. Torrez sought benefits related to depression
or a panic disorder, a right little-finger fracture, and knee
injuries. The regional office likewise denied these claims
in April 2005. Mr. Torrez again did not file a notice of
disagreement or submit new and material evidence before
the one-year deadline, and this denial thus became final.
In June 2008, Mr. Torrez filed a claim collaterally at-
tacking the 1992 and 2005 denials as based on clear and
unmistakable error. See 38 U.S.C. § 5109A. After the
regional office denied this new claim, Mr. Torrez filed a
TORREZ v. MCDONALD 3
notice of disagreement appealing this denial to the Board.
This notice of disagreement additionally identified a
number of new medical conditions that the regional office
never had the opportunity to consider, either in its 1992
or 2005 determinations or in the 2008 collateral attack.
The Board consulted with Mr. Torrez and removed these
new conditions from Mr. Torrez’ appeal so that the re-
gional office could consider them in the first instance.
The regional office has since issued a determination on
the claims for benefits relating to those conditions. The
Board then moved on to the medical conditions for which
Mr. Torrez had already sought relief from the regional
office. It remanded one to the regional office for a new
determination on clear and unmistakable error and
upheld the regional office’s determination on the others.
Mr. Torrez appealed to the Veterans Court the portion of
the Board’s decision upholding the regional office. The
Veterans Court affirmed the Board, and Mr. Torrez
appealed that decision to us.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We have jurisdiction “to review and
decide any challenge to the validity of any statute or
regulation or any interpretation thereof . . . and to inter-
pret constitutional and statutory provisions, to the extent
presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). Except when a veteran brings a constitutional
challenge, we lack jurisdiction to review any “challenge to
a factual determination” or any “challenge to a law or
regulation as applied to the facts of a particular case.” Id.
§ 7292(d)(2).
Mr. Torrez asserts that his appeal falls under our ju-
risdiction because it (1) addresses the validity or interpre-
tation of a statute or regulation and (2) raises a
constitutional challenge.
4 TORREZ v. MCDONALD
We first consider whether Mr. Torrez’ appeal address-
es any determination by the Veterans Court on the validi-
ty or interpretation of a statute or regulation. Mr. Torrez
asserts that his appeal involves questions under 38 C.F.R.
§ 3.303(a) and (b). This regulation describes principles
guiding the determination whether a condition is service
connected. Mr. Torrez does not challenge the validity or
the Veterans Court’s interpretation of this regulation, but
instead the Veterans Court’s application of the regulation
to the facts of his case. We lack jurisdiction over such a
challenge.
Second, we consider Mr. Torrez’ contention that his
appeal involves a constitutional challenge. This conten-
tion centers on the new medical conditions that he added
in filing his appeal and that the Board referred to the
regional office for consideration in the first instance. Mr.
Torrez takes issue with the Board’s decision, which in his
view is incomplete for not resolving these new claims. Mr.
Torrez frames this issue as a problem with the Veterans
Court’s jurisdiction, which it is not. We might, however,
interpret Mr. Torrez’ objection to the Board’s determina-
tion to raise a constitutional concern. To the extent that
we have jurisdiction over this challenge, we find the
Board’s actions to have appropriately protected Mr.
Torrez’ rights. “Claims for veterans’ benefits are initially
developed and adjudicated by a VA Regional Office.”
Sprinkle v. Shinseki, 733 F.3d 1180, 1183–84 (Fed. Cir.
2013) (citing 38 U.S.C. § 7105(b)(1), (d)(1)). “Decisions of
the Regional Office are then reviewed on appeal by the
Board.” Id. at 1184 (citing 38 U.S.C. § 7104(a)). “To
ensure that claimants receive the benefit of this two-
tiered review within the agency, all evidence relevant to a
claim generally must be considered by the Regional Office
in the first instance.” Id. (citing 38 U.S.C. § 7104(a)). By
referring these claims to the regional office, the proper
forum to consider them in the first instance, the Board
ensured Mr. Torrez access to an adjudication through the
TORREZ v. MCDONALD 5
proper channels. Mr. Torrez does not dispute that the
regional office adjudicated these claims. We therefore see
no violation of any constitutional principle in the record
below. To the extent that Mr. Torrez has made out a
constitutional claim over which we have jurisdiction, it is
unfounded.
CONCLUSION
We dismiss Mr. Torrez’ appeal for lack of jurisdiction
and, to the extent that he raises a constitutional claim
over which we have jurisdiction, we reject this claim.
AFFIRMED IN PART and DISMISSED IN PART
COSTS
No Costs.