Case: 23-1820 Document: 23 Page: 1 Filed: 01/10/2024
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ARNOLDO MAYORGA,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1820
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-1780, Judge Amanda L. Mere-
dith, Judge Grant Jaquith, Judge Michael P. Allen.
______________________
Decided: January 10, 2024
______________________
ARNOLDO MAYORGA, San Antonio, TX, pro se.
NATALEE A. ALLENBAUGH, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY.
______________________
Before REYNA, TARANTO, and CHEN, Circuit Judges.
Case: 23-1820 Document: 23 Page: 2 Filed: 01/10/2024
2 MAYORGA v. MCDONOUGH
PER CURIAM.
Arnoldo Mayorga, a veteran of the United States Air
Force, applied to the Department of Veterans Affairs (or its
predecessor, Veterans Administration) on a number of oc-
casions for benefits for alleged service-connected disabili-
ties. As relevant here, he received several negative
decisions from the Department (whether a regional office
or the Board of Veterans’ Appeals) concerning whether the
conditions at issue were connected to his service. In late
2017 and early 2018, Mr. Mayorga requested that the De-
partment, as to certain such decisions, revise them because
they were infected by clear and unmistakable error (CUE)
or reopen the claims denied in them. In 2018, the Board
denied Mr. Mayorga’s requests, declining to revise the prior
denials of service connection based on CUE or reopen any
of his claims. In 2022, the United States Court of Appeals
for Veterans Claims (Veterans Court) affirmed the Board’s
decision in part but dismissed two sets of challenges raised
in Mr. Mayorga’s appeal—one for inadequacy of allegations
of (prejudicial) error by the Board, the other for lack of ju-
risdiction. SAppx. 1–13; 1 Mayorga v. McDonough, No. 22-
1780, 2022 WL 17174968 (Vet. App. Nov. 23, 2022). Mr.
Mayorga appeals the Veterans Court’s decision, but we
lack jurisdiction over the appeal and must dismiss.
I
Mr. Mayorga served in the Air Force from March 1966
to April 1970. Between April 1970 and March 2012, Mr.
Mayorga filed three claims for disability benefits, identify-
ing multiple conditions he asserted to be connected to his
service, but all of those claims were denied. Specifically, a
May 1970 rating decision found no service connection for a
positive tuberculin reaction; a July 2003 rating decision
found no service connection for cardiovascular disease and
1 “SAppx.” refers to the supplemental appendix the De-
partment’s Secretary filed in this court with his brief as re-
spondent.
Case: 23-1820 Document: 23 Page: 3 Filed: 01/10/2024
MAYORGA v. MCDONOUGH 3
bilateral carpal tunnel syndrome; and a January 2014 rat-
ing decision found no service connection for cardiovascular
disease, bilateral carpal tunnel syndrome, severe head-
aches, a lower back disability, and insomnia. SAppx. 2–3.
In October 2017, Mr. Mayorga submitted a “supple-
mental claim” to reopen and revise the July 2003 and Jan-
uary 2014 rating decisions. SAppx. 3, 25. In May 2018, he
filed another claim to reopen and revise the July 2003 rat-
ing decision along with a statement claiming CUE in “‘pre-
viously denied claims.’” SAppx. 25. In July 2018, the
regional office appears to have construed Mr. Mayorga’s re-
quests as alleging CUE in all previously denied claims and
“issued a rating decision that determined revision based on
CUE wasn’t warranted for any . . . prior rating decision[].”
SAppx. 3; see SAppx. 25.
In March 2022, the Board issued a decision largely
agreeing with the regional office. The Board denied enti-
tlement to revision based on CUE on all claims. SAppx.
24–25. The Board also denied entitlement to reopening of
Mr. Mayorga’s claims based on the positive tuberculin re-
action, cardiovascular disease, bilateral carpal tunnel syn-
drome, severe headaches, and a lower back disability
because it found Mr. Mayorga had not submitted any new
and material evidence (as required for reopening). SAppx.
25. But the Board reopened Mr. Mayorga’s claim based on
insomnia, ruling that new and material evidence had been
submitted. SAppx. 25.
Mr. Mayorga appealed the Board’s decision to the Vet-
erans Court. The Veterans Court dismissed several por-
tions of the appeal. First, as to certain portions of Mr.
Mayorga’s appeal related to the Board’s denial of reopen-
ing, the court dismissed because a veteran appealing from
such a denial must identify a Board error and show that
the error was prejudicial, see Shinseki v. Sanders, 556 U.S.
396, 406 (2009), and Mr. Mayorga “simply [did] not allege
how the Board erred when it denied reopening his claims.”
SAppx. 5. Second, the Veterans Court ruled that it lacked
jurisdiction to consider certain of Mr. Mayorga’s
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4 MAYORGA v. MCDONOUGH
allegations of CUE—(1) his allegation that the May 1970
rating decision failed to address several regulations related
to tuberculosis-specific considerations (specifically, 38
C.F.R. §§ 3.371, 3.374(a), and 3.375(a)–(b)); and (2) his al-
legation that the January 2014 rating decision failed to ad-
dress whether his headaches, insomnia, and a back
condition came within the secondary-service-connection
standard of 38 C.F.R. § 3.310. SAppx. 6, 12. The Veterans
Court explained that Mr. Mayorga had failed to raise those
challenges before the Board, which, therefore, had not is-
sued a reviewable decision as to these specific CUE asser-
tions. SAppx. 6, 12. The Veterans Court otherwise
affirmed the Board’s denial of entitlement to revision based
on CUE on all claims at issue. SAppx. 6–13.
II
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. We have the authority to re-
view “the validity of a decision of the [Veterans] Court on a
rule of law or of any statute or regulation . . . or any inter-
pretation thereof (other than a determination as to a fac-
tual matter) that was relied on by the Court in making the
decision.” 38 U.S.C. § 7292(a); Flores-Vasquez v.
McDonough, 996 F.3d 1321, 1325 (Fed. Cir. 2021). We have
jurisdiction to decide “all relevant questions of law” and
will “set aside any regulation or any interpretation
thereof,” if relied upon in the decision of the Veterans
Court, that is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 38 U.S.C.
§ 7292(d)(1). But where, as here, there is no constitutional
issue raised, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2).
In his briefing on appeal, Mr. Mayorga does not raise
any reviewable challenge. First, Mr. Mayorga appears to
argue that the Veterans Court’s dismissal of portions of his
appeal was erroneous. As to the Veterans Court’s dismis-
sal of the portions of his appeal pertaining to the Board’s
Case: 23-1820 Document: 23 Page: 5 Filed: 01/10/2024
MAYORGA v. MCDONOUGH 5
refusal to reopen his claims, Mr. Mayorga challenges only
the application of law to facts. And as to Mr. Mayorga’s
allegations of CUE related to the May 1970 and January
2014 rating decisions’ failure to address various regulatory
provisions, the specific CUE assertions (as the Veterans
Court correctly noted) must be first raised with the re-
gional office. See SAppx. 6, 12; Andre v. Principi, 301 F.3d
1354, 1362 (Fed. Cir. 2002). Just as the Veterans Court
lacked jurisdiction to consider these issues in the first in-
stance, we do as well. See 38 U.S.C. § 7292(a); Maggitt v.
West, 202 F.3d 1370, 1374 (Fed. Cir. 2000).
Second, Mr. Mayorga appears to allege that the Board’s
finding of no CUE in a prior decision is arbitrary if the
Board later grants benefits. We note the recent precedent
confirming that CUE is assessed based on legal and other
premises in place at the time of the challenged decision,
which can change later, so that a claim denial at one time
might not be CUE even when the same claim is granted
later. See George v. McDonough, 142 S. Ct. 1953, 1959–60
(2022). Regardless, as this argument was not raised before
the Veterans Court, we are precluded from considering it
in the first instance. See 38 U.S.C. § 7292(a) (limiting our
jurisdiction to those issues “relied on by the [Veterans]
Court in making [its] decision”); Maggitt, 202 F.3d at 1374.
Because we lack authority to review Mr. Mayorga’s
challenges to the Veterans Court’s decision, we must dis-
miss this appeal for lack of subject-matter jurisdiction.
The parties shall bear their own costs.
DISMISSED