NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

GUADALUPE LOPEZ, JR.,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2022-1507

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-7393, Judge Michael P. Allen.

______________________ 

Decided: June 13, 2022

______________________ 

GUADALUPE LOPEZ, JR., San Antonio, TX, pro se. 

 IGOR HELMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, for respondent-appellee. Also represented by BRIAN M.

BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY; 

AMANDA BLACKMON, Y. KEN LEE, Office of General Counsel, 

United States Department of Veterans Affairs, Washington, DC. 

 ______________________ 

Case: 22-1507 Document: 13 Page: 1 Filed: 06/13/2022
2 LOPEZ v. MCDONOUGH

Before NEWMAN, STOLL, and STARK, Circuit Judges.

PER CURIAM. 

Guadalupe Lopez, Jr., a United States Marine Corps 

veteran, appeals the decision of the United States Court of 

Appeals for Veterans Claims. Mr. Lopez argues that his 

entitlement to disability benefits for coronary artery disease should have been effective as of the date he was discharged from service. Because Mr. Lopez’s challenges on 

appeal involve the application of law to fact, we dismiss for 

lack of jurisdiction.

BACKGROUND

Mr. Lopez served in the Marine Corps from February 

1967 to March 1970, including service in the Republic of 

Vietnam. SAppx. 6.1 During the time frame between now 

and his discharge, he has claimed, and received, service 

connection for numerous disabilities, including PTSD, tension headaches, carpal tunnel syndrome, coronary artery 

disease, and a variety of disabilities stemming from shell 

fragment wounds. SAppx. 145–46. The current appeal relates to his claim for service connection for coronary artery 

disease.

Although Mr. Lopez sought service connection for numerous disabilities shortly after his discharge in March 

1970, SAppx. 176–78, he did not seek service connection for 

coronary artery disease at that time. In October 1984, 

Mr. Lopez sought service connection for other health problems, including a heart problem. SAppx. 167. The Veterans Administration Regional Office (RO) denied his claims 

in January 1985. Id.

1 “SAppx.” refers to the supplemental appendix filed 

by the Government.

Case: 22-1507 Document: 13 Page: 2 Filed: 06/13/2022
LOPEZ v. MCDONOUGH 3

In January 1997, Mr. Lopez filed a request to reopen 

claims for service connection for several conditions, including dizziness, shortness of breath, and high blood pressure. 

SAppx. 164. The RO denied his request to reopen, finding 

that Mr. Lopez had failed to present new and material evidence warranting reopening. Id.

In March 2002, Mr. Lopez reported to the VA medical 

center in San Antonio, Texas that he had a history of coronary artery disease. SAppx. 160. That reporting was reflected in his records which were received by the VA on 

September 17, 2002. Id.

On October 13, 2009, the VA added “ischemic heart disease” (also known as coronary artery disease) to the list of 

disabilities that are presumptively service-connected based 

on exposure to herbicides in the Republic of Vietnam. Accordingly, in February 2010, Mr. Lopez sought “retroactive 

benefits” for coronary artery disease. SAppx. 163. The RO 

granted service connection for coronary artery disease and 

assigned a ten percent disability rating effective September 17, 2002, the date the VA received Mr. Lopez’s medical 

record reporting his history of coronary artery disease. 

SAppx. 150, 159–61. Mr. Lopez appealed this decision to 

the Board of Veterans’ Appeals.

While Mr. Lopez’s appeal was pending, he underwent 

a VA examination on January 29, 2015, in which the examiner noted Mr. Lopez’s coronary artery disease impacted 

his ability to work. SAppx. 66, 143. Accordingly, the RO 

increased Mr. Lopez’s rating from ten percent to thirty percent, effective January 29, 2015. SAppx. 143–44.

The Board, in September 2016, denied Mr. Lopez’s request for an increased rating and earlier effective date for

the thirty percent rating. SAppx. 98–99. Mr. Lopez appealed this decision to the Court of Appeals for Veterans 

Claims. 

Case: 22-1507 Document: 13 Page: 3 Filed: 06/13/2022
4 LOPEZ v. MCDONOUGH

The Veterans Court vacated the Board’s determination 

as to a thirty percent disability rating effective January 29, 

2015. SAppx. 66. The Veterans Court determined that the 

Board failed to account for the 2015 VA examiner’s finding 

that Mr. Lopez’s coronary artery disease affected his ability 

to work and did not make specific findings as to why this 

was appropriately addressed by his thirty percent rating. 

Id. 

On remand, the Board considered the VA examiner’s 

statement, but denied a rating higher than thirty percent. 

SAppx. 52–53. The Board, however, assigned an earlier effective date for Mr. Lopez’s coronary artery disease based 

on an exception from the general rules for establishing an 

effective date. SAppx. 61–63. Specifically, in the wake of 

a successful class action lawsuit2 against the VA regarding 

veterans’ exposure to certain herbicides, including Agent 

Orange, the VA promulgated a regulation implementing 

the court’s orders—38 C.F.R. § 3.816. This regulation specifies rules for determining retroactive effective dates for Vietnam-era veterans whose disabilities are later presumed

service-connected by statute or regulation. The Board applied that regulation here. 

The Board determined that Mr. Lopez’s claim that was 

denied in January 1985 fell outside the window for this exception. SAppx. 62; see also § 3.816(c)(1) (listing date 

range as September 25, 1985 to May 3, 1989), (c)(2) (listing 

date range as “pending before VA on May 3, 1989, or was 

received by VA between that date and the effective date of 

the statute or regulation establishing a presumption of service connection for the covered disease”). But the Board 

2 Nehmer v. U.S. Veterans’ Admin., 712 F. Supp. 

1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans 

Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II);

Nehmer v. Veterans’ Admin. of Gov’t of U.S., 284 F.3d 1158 

(9th Cir. 2002) (Nehmer III). 

Case: 22-1507 Document: 13 Page: 4 Filed: 06/13/2022
LOPEZ v. MCDONOUGH 5

interpreted Mr. Lopez’s 1997 request to reopen, which fell 

within the window of the exception, as “reasonably includ[ing] symptomology contemplated by a heart disorder.” 

SAppx. 62. Accordingly, the Board assigned an effective 

date of January 4, 2001, which was the date the Board determined that the “disability arose” under § 3.816(c)(2). 

SAppx. 63. Mr. Lopez again appealed this decision to the 

Veterans Court.

The Veterans Court again vacated the Board’s decision 

and remanded. The Veterans Court found the Board’s determination of the effective date as being the date of diagnosis to be deficient in its reasoning. SAppx. 31. 

Accordingly, the Veterans Court remanded the case to the 

Board.

In a July 2020 decision, the Board applied an effective 

date of January 17, 1997, SAppx. 14, 19, the date of 

Mr. Lopez’s request to reopen which the Board had previously interpreted as “reasonably includ[ing] symptomology 

contemplated by a heart disorder,” SAppx. 62. The Board 

again confirmed, however, that Mr. Lopez’s earlier 1984 

claim that included “heart problems” was filed outside of 

the window for the special Nehmer rules governing effective dates. SAppx. 18. The Board also denied an increased 

rating (above thirty percent). SAppx. 22. Mr. Lopez then 

appealed this decision to the Veterans Court. 

This time, the Veterans Court affirmed. Lopez 

v. McDonough, No. 20-7393 (Vet. App. Jan. 19, 2022). 

SAppx. 1 (Judgment); SAppx. 6–12 (Memorandum Decision). In a single-judge memorandum decision, the Veterans Court found no basis for entitlement for awarding an 

effective date retroactive to March 1970 (the date of 

Mr. Lopez’s discharge), as Mr. Lopez had requested. 

SAppx. 8. The Veterans Court confirmed the Board’s application of the special Nehmer effective date provisions to 

Mr. Lopez’s case and rejected his argument that the Board 

failed to comply with previous remands. SAppx. 8–9. The 

Case: 22-1507 Document: 13 Page: 5 Filed: 06/13/2022
6 LOPEZ v. MCDONOUGH

Veterans Court also rejected Mr. Lopez’s claims for a 

higher rating. SAppx. 9–11. 

Mr. Lopez then moved for a panel decision. A threejudge panel granted the request and affirmed the singlejudge memorandum decision. Appellant’s Br. 29–30 (Veterans Court panel decision dated December 13, 2021).3 

Mr. Lopez then moved for review by the full court, which 

the Veterans Court denied on January 19, 2022. Appellant’s Br. 27.

Mr. Lopez now appeals to this court.

DISCUSSION

Our jurisdiction over appeals from the Veterans Court

is limited. We are permitted to “decide all relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). But we cannot 

review a challenge to a factual finding or a challenge to a 

law or regulation as applied to the facts of a case, except to 

the extent that an appeal presents a constitutional issue. 

Id. § 7292(d)(2); Wanless v. Shinseki, 618 F.3d 1333, 1336

(Fed. Cir. 2010).

On appeal, Mr. Lopez makes a number of arguments 

challenging the Veterans Court’s decision, but they all involve challenges to the application of the law to fact—questions that we may not review. For instance, we understand 

Mr. Lopez to argue principally that the Veterans Court’s 

decision misapplied the Nehmer special provisions in determining the effective date in his case. See, e.g., Appellant’s 

Br. 2 (arguing “non-Nehmer disposition”), 5 (referring to 

the “Nehmer Court Order” and Section 3.816); see also id.

at 7–8, 10–11, 13–16, 18–19, 22–23. This argument, 

3 “Appellant’s Br. __” refers to pages in Mr. Lopez’s 

informal brief as paginated by the Court’s electronic filing 

system.

Case: 22-1507 Document: 13 Page: 6 Filed: 06/13/2022
LOPEZ v. MCDONOUGH 7

however, requests that we review the Veterans Court’s application of the law (the Nehmer special provisions and 

§ 3.816) to the facts in Mr. Lopez’s case, something that we 

may not review.

Mr. Lopez also appears to challenge the Veterans 

Court’s application of its Internal Operating Procedures

(IOPs). See, e.g., Appellant’s Br. 4, 7–9, 11, 16–17. This, 

however, does not involve a question of law or interpretation of a constitutional or regulatory provision, over which 

we would have jurisdiction. See Mathis v. McDonald, 

625 F. App’x 539, 542 (Fed. Cir. 2015) (dismissing challenge to Veterans Court’s denial of motion to reassign 

based on the Veterans Court’s assignment based on its 

IOPs, a determination that we found to be “a factual one 

. . . outside our jurisdiction”).4 

4 We note that Mr. Lopez argues we have jurisdiction 

under Graves v. Principi, 294 F.3d 1350, 1355 (Fed. Cir. 

2002). Appellant’s Br. 12. In Graves, we rejected the Government’s argument urging dismissal where the appellant 

argued that the Veterans Court improperly interpreted its 

Rules of Practice and Procedure. 294 F.3d at 1353–55. The 

issue in Graves, however, regarded the Veterans Court’s 

jurisdiction and we treated the rules of the Veterans Court 

as “analogous to regulations.” Id. at 1355 n.1. Furthermore, we noted that the Veterans Court’s decision “makes 

it clear that the court elaborated upon the meaning of 

Rule 42, as well as 38 U.S.C. § 7266(a).” Id. at 1355. Accordingly, we held that we had jurisdiction because the 

Veterans Court was interpreting both a rule and a statute. 

The Veterans Court’s IOPs discussing the internal processing procedures for appeals are not analogous. And in 

any case, it is not clear that the Veterans Court was interpreting those IOPs in its decisions because the decisions do 

not mention the IOPs at all. 

Case: 22-1507 Document: 13 Page: 7 Filed: 06/13/2022
8 LOPEZ v. MCDONOUGH

Furthermore, it appears that the basis of Mr. Lopez’s 

argument regarding the Veterans Court’s IOPs is that the 

Board acted in defiance of the Veterans Court’s remands, 

and thus the Board’s decision was “‘substantially different’ 

from the one remanded.” See, e.g., Appellant’s Br. 8. The 

difference between the Veterans Court’s mandates and the 

Board’s decisions, in Mr. Lopez’s view, is the application of 

Nehmer in determining the effective date for Mr. Lopez’s 

coronary artery disease. Id. (arguing the Veterans Court 

erred in “accept[ing] ‘a new appeal’ remanded rationale 

from the [Board]” instead of being “in response to [the Veterans] Court . . . Nehmer remand rationale” and thus “ignored [the] Court’s . . . responsibilities” under the IOPs). 

But as explained above, we do not have jurisdiction to review the application of Nehmer to the facts of Mr. Lopez’s 

case. 

Here, the Veterans Court acted leniently in interpreting Mr. Lopez’s claims and arguments. It remanded his 

case twice, each time resulting in increased benefits for 

Mr. Lopez. Mr. Lopez now challenges the third decision by 

the Veterans Court, focusing only on the Veterans Court’s 

application of the Nehmer provisions in determining the effective date of his claims. We do not have jurisdiction to 

review this application of law to fact. Accordingly, we dismiss Mr. Lopez’s appeal.

CONCLUSION

Because we lack jurisdiction to consider the arguments

Mr. Lopez raises on appeal, we dismiss.

DISMISSED

COSTS

No costs.

Case: 22-1507 Document: 13 Page: 8 Filed: 06/13/2022