NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

PABLO ORTIZ, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2011-7073 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in Case No. 09-3054, Judge Robert N. 

Davis. 

___________________________ 

Decided: June 10, 2011 

___________________________ 

PABLO ORTIZ, of Glendale, Arizona, pro se. 

SCOTT PALMER, Trial Attorney, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, of Washington, DC., for respondent-appellee. 

With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and 
ORTIZ v. DVA 2

REGINALD T. BLADES, JR, Assistant Director. Of counsel 

on the brief was MICHAEL J. TIMINSKI, Deputy Assistant 

General Counsel, United States Department of Veterans 

Affairs, of Washington, DC. 

__________________________ 

Before BRYSON, DYK, and O’MALLEY, Circuit Judges. 

PER CURIAM. 

DECISION

Pablo Ortiz appeals from an adverse decision of the 

Court of Appeals for Veterans Claims (“the Veterans 

Court”). We affirm. 

BACKGROUND

Mr. Ortiz fractured his left ankle in 1972 while serving on active duty in the U.S. Army. The injury was 

found to be service connected, and Mr. Ortiz was assigned 

a disability rating of 10% for residuals associated with 

that injury. Mr. Ortiz later requested that his disability 

rating be increased. He also asked to be rated as totally 

disabled based on individual unemployability (“TDIU”). 

Following a series of decisions by the regional office, the 

Board of Veterans’ Appeals, and the Veterans Court, the 

Board issued an order denying Mr. Ortiz’s request for an 

increase in rating and remanding Mr. Ortiz’s TDIU claim 

to the regional office. The Board explained that the 

medical evidence of record and the veteran’s self-reported 

evaluation of his ankle condition all confirmed that the 

proper rating is 10%. With respect to the TDIU claim, the 

Board instructed the regional office to consider the combined effect of Mr. Ortiz’s service-connected ankle injury 

and his diabetes on his ability to maintain gainful employment. 
3 ORTIZ v. DVA

Mr. Ortiz appealed the Board’s decision to the Veterans Court. The court reviewed the evidence of record and 

concluded that the Board’s decision to maintain a 10% 

rating was not clearly erroneous. With respect to the 

TDIU claim, the court held that it lacked jurisdiction to 

consider Mr. Ortiz’s appeal because that claim had been 

remanded to the regional office. Finally, the court held 

that the Secretary had complied with the notice requirements of the Veterans Claims Assistance Act of 2000 

(“VCAA”). 

DISCUSSION

This court has limited jurisdiction to consider appeals 

from the Veterans Court. We have “exclusive jurisdiction 

to review and decide any challenge to the validity of any 

statute or regulation or any interpretation thereof [by the 

Veterans Court] . . ., and to interpret constitutional and 

statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). Except to the 

extent that a veteran’s appeal presents a constitutional 

issue, we may not review challenges to factual determinations or challenges to the application of a law to the facts 

of a particular case. 38 U.S.C. § 7292(d)(2). Nearly all of 

Mr. Ortiz’s assertions of error are outside of this court’s 

jurisdiction. Accordingly, we do not review the merits of 

those claims; as to the only issue over which we have 

jurisdiction, we uphold the decision of the Veterans Court 

and affirm the judgment of that court. 

We lack jurisdiction to consider Mr. Ortiz’s contention 

that the evidence of record, including medical reports and 

Mr. Ortiz’s social security disability records, required the 

Secretary to increase his disability rating. That is a pure 

question of fact. We also lack jurisdiction to consider Mr. 

Ortiz’s argument that the “benefit of the doubt” rule 
ORTIZ v. DVA 4

requires judgment in his favor. Neither the Board nor the 

Veterans Court interpreted the statute codifying that 

rule, 38 U.S.C. § 5107(b). The “benefit of the doubt” rule 

applies only when the evidence in support of and against 

the veteran’s claim is approximately balanced; it has no 

application to cases such as this one, in which the Board 

found that a preponderance of the evidence supports 

maintenance of the 10% rating. See Fagan v. Shinseki, 

573 F.3d 1282, 1287 (Fed. Cir. 2009) (“[T]he benefit of the 

doubt doctrine has no application where the Board determined that the preponderance of the evidence weights 

against the veteran’s claim or when the evidence is not in 

equipoise.”) (internal quotation omitted). Mr. Ortiz faults 

the Board for failing to articulate the reasons supporting 

its decision. The Veterans Court concluded that the 

Board’s explanation of its decision was satisfactory, and 

we lack jurisdiction to review that determination. Similarly, we lack jurisdiction to consider whether the Secretary provided Mr. Ortiz with the notice required by the 

VCAA. See Conway v. Principi, 353 F.3d 1369, 1373 (Fed. 

Cir. 2004) (assessing the Board’s compliance with the 

notice provisions of the VCAA in a particular case is a 

review of the application of law to fact and is therefore 

outside of this court’s jurisdiction). 

The Veterans Court correctly determined that it 

lacked jurisdiction to review Mr. Ortiz’s appeal related to 

TDIU benefits. The Veterans Court’s jurisdiction is 

limited to reviewing “decisions” made by the Board. 38 

U.S.C. § 7252(a). To constitute a reviewable “decision,” 

the Board’s order must either grant or deny the veteran’s 

request for relief. 38 U.S.C. § 7104(d)(2); Kirkpatrick v. 

Nicholson, 417 F.3d 1361, 1364 (Fed. Cir. 2008). Here, 

the Board’s remand order directed the regional office to 

consider the merits of Mr. Ortiz’s request for a TDIU 

rating. That order did not grant or deny relief to Mr. 
5 ORTIZ v. DVA

Ortiz, and it is therefore not a “decision” within the 

meaning of the Veterans Court’s jurisdictional statute. 

Kirkpatrick, 417 F.3d at 1364. We have jurisdiction to 

review the Veterans Court’s decision on that issue, and 

we sustain the court’s decision that it lacked jurisdiction 

over the TDIU claim, as that decision is plainly correct. 

Mr. Ortiz states that he is entitled to disability compensation for post-traumatic stress disorder (“PTSD”) and 

a number of other conditions. That issue does not appear 

to have been raised before the Board or the Veterans 

Court, and we cannot consider it in the first instance. 

Finally, Mr. Ortiz suggests that the Veterans Court 

and the DVA have acted out of racial animus. He has 

pointed to no evidence in support of that argument. His 

vague allegations do not rise to the level of a non-frivolous 

constitutional issue that would fall within our jurisdiction. 

No costs. 

AFFIRMED