Case: 22-1897 Document: 18 Page: 1 Filed: 03/16/2023

NOTE: This disposition is nonprecedential.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, Wash- ington, DC, for respondent-appellee. Also represented by BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.

MCCARTHY. ______________________ Case: 22-1897 Document: 18 Page: 2 Filed: 03/16/2023

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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’ Ap- peals (Board) denying service connection for cardiovascular disease and hypertension. For the reasons below, we af- firm the Veterans Court’s decision as to Mr. Onofre’s car- diovascular 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 juris- diction.

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 dis- ease and hypertension. Id. After multiple examinations and remands, the Department of Veterans’ Affairs (VA) de- termined that Mr. Onofre had paroxysmal atrial fibrilla- tion (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. On- ofre was presumptively exposed to Agent Orange while serving in Vietnam and that service connection for post- traumatic 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: 3 Filed: 03/16/2023

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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 parox- ysmal atrial fibrillation and hypertension from presump- tive service connection for herbicide exposure. Informal Br. 1–2. We disagree. Section 3.309(e) lists certain dis- eases as presumptively service connected if the veteran was exposed to herbicides during active service, none of which include paroxysmal atrial fibrillation and hyperten- sion. 38 C.F.R. § 3.309(e) (2021). The cardiovascular con- dition “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 hy- pertension.

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) af- firm or dismiss the appeal for both the paroxysmal atrial fibrillation and hypertension claims; or (2) affirm or dis- miss 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 cir- cumstances, we think the government’s second recommen- dation 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: 4 Filed: 03/16/2023

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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 dis- ease 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 fibril- lation claim, vacate and remand the Veterans Court’s deci- sion 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.