NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
ROLANDO E. ONOFRE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
2022-1897
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-2711, Judge Joseph L. Falvey,
Jr.
Decided: March 16, 2023
ROLANDO E. ONOFRE, San Antonio, TX, pro se.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY.
Case: 22-1897 Document: 18 Page: 1 Filed: 03/16/2023
2 ONOFRE v. MCDONOUGH
Before DYK, LINN, and CHEN, Circuit Judges.
PER CURIAM.
Rolando E. Onofre appeals a decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court) affirming a decision of the Board of Veterans’ Appeals
(Board) denying service connection for cardiovascular
disease and hypertension. For the reasons below, we affirm
the Veterans Court’s decision as to Mr. Onofre’s cardiovascular
disease claim, vacate and remand the Veterans
Court’s decision as to the hypertension claim, and dismiss
the parts of Mr. Onofre’s appeal over which we lack jurisdiction.
BACKGROUND
Mr. Onofre served in Vietnam from September 1970 to
September 1971. Onofre v. McDonough, No. 21-2711, 2022
WL 214508, at *1 (Vet. App. Jan. 25, 2022) (Veterans Court
Decision). In 2008, he filed claims for cardiovascular disease
and hypertension. Id. After multiple examinations
and remands, the Department of Veterans’ Affairs (VA) determined
that Mr. Onofre had paroxysmal atrial fibrillation
(a cardiovascular disease) and hypertension but
denied his claims as not service connected. Id. at *1–2. In
its most recent decision, the Board explained that Mr. Onofre
was presumptively exposed to Agent Orange while
serving in Vietnam and that service connection for posttraumatic
stress disorder (PTSD) was established, but the
Board again denied service connection for cardiovascular
disease and hypertension. Id. at *2. The Veterans Court
affirmed, determining that the Board provided adequate
reasons for its decision. Id. at *1, *4. This appeal followed.
DISCUSSION
Our authority to review decisions of the Veterans Court
is limited by statute. Goodman v. Shulkin, 870 F.3d 1383,
1385 (Fed. Cir. 2017). We may “review and decide any
challenge to the validity of any statute or regulation or any
Case: 22-1897 Document: 18 Page: 2 Filed: 03/16/2023
ONOFRE v. MCDONOUGH 3
interpretation thereof . . . and . . . interpret constitutional
and statutory provisions” to the extent they are necessary
to a decision. 38 U.S.C. § 7292(c). Except to the extent an
appeal presents a constitutional issue, we may not review
a challenge to a factual determination or the application of
a law or regulation to the facts of a particular case. Id.
§ 7292(d)(2).
Mr. Onofre appears to argue that the Veterans Court
erred in interpreting 38 C.F.R. § 3.309(e) to exclude paroxysmal
atrial fibrillation and hypertension from presumptive
service connection for herbicide exposure. Informal
Br. 1–2. We disagree. Section 3.309(e) lists certain diseases
as presumptively service connected if the veteran
was exposed to herbicides during active service, none of
which include paroxysmal atrial fibrillation and hypertension.
38 C.F.R. § 3.309(e) (2021). The cardiovascular condition
“ischemic heart disease” is listed, but “ischemic
heart disease does not include hypertension.” Id. § 3.309(e)
n.2. Thus, the Veterans Court properly interpreted
§ 3.309(e) to exclude paroxysmal atrial fibrillation and hypertension.
After the Veterans Court’s decision, however, Congress
amended the list of conditions for which service connection
following herbicide exposure may be statutorily presumed
to include hypertension. Honoring our PACT Act of 2022,
Pub. L. No. 117-678, § 404, 136 Stat. 1759, 1782 (codified
at 38 U.S.C. § 1116(a)(2)). In light of this recent change in
the law, the Secretary recommends the court either: (1) affirm
or dismiss the appeal for both the paroxysmal atrial
fibrillation and hypertension claims; or (2) affirm or dismiss
the paroxysmal atrial fibrillation claim but remand
the hypertension claim for further consideration under the
PACT Act. Informal Resp. Br. 7–8, 8 n.2. Under the circumstances,
we think the government’s second recommendation
is appropriate, and thus we remand Mr. Onofre’s
hypertension claim for further consideration in light of the
amended statute.
Case: 22-1897 Document: 18 Page: 3 Filed: 03/16/2023
4 ONOFRE v. MCDONOUGH
To the extent Mr. Onofre argues that the record shows
he proved service connection (either directly or secondary)
for paroxysmal atrial fibrillation, hypertension, or any disease
listed in § 3.309(e), those arguments are directed to
findings of fact or the application of regulation to the
facts—arguments over which we lack jurisdiction. See 38
U.S.C. § 7292(d)(2).
CONCLUSION
We have considered Mr. Onofre’s remaining arguments
but find them unpersuasive. Accordingly, we affirm the
Veterans Court’s decision as to the paroxysmal atrial fibrillation
claim, vacate and remand the Veterans Court’s decision
as to the hypertension claim, and dismiss the parts of
Mr. Onofre’s appeal over which we lack jurisdiction.
AFFIRMED-IN-PART, VACATED-IN-PART,
DISMISSED-IN-PART, AND REMANDED
COSTS
No costs.
Case: 22-1897 Document: 18 Page: 4 Filed: 03/16/2023
Veteranclaims's Blog 
Leave a Reply