NOTE: This disposition is nonprecedential.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. Meredith, 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 Justice, Washington, DC, for respondent-appellee. Also represented by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.

MCCARTHY. 

______________________ 

Before REYNA, TARANTO, and CHEN, Circuit Judges.

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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 occasions for benefits for alleged service-connected disabilities. 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 Department, 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 jurisdiction. 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, identifying 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 Department’s Secretary filed in this court with his brief as respondent.

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MAYORGA v. MCDONOUGH 3

bilateral carpal tunnel syndrome; and a January 2014 rating decision found no service connection for cardiovascular 

disease, bilateral carpal tunnel syndrome, severe headaches, a lower back disability, and insomnia. SAppx. 2–3.

In October 2017, Mr. Mayorga submitted a “supplemental claim” to reopen and revise the July 2003 and January 2014 rating decisions. SAppx. 3, 25. In May 2018, he

filed another claim to reopen and revise the July 2003 rating decision along with a statement claiming CUE in “‘previously denied claims.’” SAppx. 25. In July 2018, the 

regional office appears to have construed Mr. Mayorga’s requests 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 entitlement 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 reaction, cardiovascular disease, bilateral carpal tunnel syndrome, 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 Veterans Court. The Veterans Court dismissed several portions of the appeal. First, as to certain portions of Mr. 

Mayorga’s appeal related to the Board’s denial of reopening, 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 allegation that the January 2014 rating decision failed to address 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 issued a reviewable decision as to these specific CUE assertions. 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 review “the validity of a decision of the [Veterans] Court on a 

rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual 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 dismissal of the portions of his appeal pertaining to the Board’s 

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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 regional 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 instance, 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 dismiss this appeal for lack of subject-matter jurisdiction. 

The parties shall bear their own costs.

DISMISSED

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