                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                        2010-7039


                            FRANCISCO C. ALVAREZ, JR.,

                                                                Claimant-Appellant,

                                             v.

                   ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                                Respondent-Appellee.


      Francisco C. Alvarez, Jr., of Victorville, California, pro se.

       Amanda L. Tantum, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Martin F. Hockey, Assistant Director. Of counsel on the brief were David
J. Barrans, Deputy Assistant General Counsel, and Kristiana Brugger, Attorney, Office
of the General Counsel, United States Department of Veterans Affairs, of Washington,
DC.


Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2010-7039

                             FRANCISCO C. ALVAREZ JR.

                                                             Claimant-Appellant,

                                            v.

                   ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                             Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 08-1337, Chief
Judge William P. Greene, Jr.
                        ______________________________

                               DECIDED: May 7, 2010
                          ______________________________



Before LOURIE, FRIEDMAN, and LINN, Circuit Judges.

PER CURIAM.

       The pro se appellant, Francisco C. Alvarez, Jr., seeks disability benefits for a

bilateral eye disorder, namely his loss of visual acuity during his military service. The

Board of Veterans’ Appeals (“Board”) denied him those benefits, and the United States

Court of Appeals for Veterans Claims (“Veterans Court”) affirmed. Because his appeal

raises only factual issues which we have no jurisdiction to review, we dismiss it.

                                             I

       During his four years of military service, Alvarez concededly lost visual acuity.

He attributes this loss to his work as a telecommunications specialist, which involved
reading-intensive, detail-oriented work such as typing, proofreading, and upgrading

manuals.

       In denying him benefits, the Board found that he suffered from myopia, or

“nearsightedness,” which is considered a congenital refractive disorder.              Under

regulations of the Department of Veterans Affairs (“Department”), “[c]ongenital or

developmental defects, [such as] refractive error of the eye . . . are not diseases or

injuries within the meaning of applicable legislation,” 38 C.F.R. § 3.303(c), and therefore

are not compensable. This court has upheld the validity of that regulation. Terry v.

Principi, 340 F.3d 1378 (Fed. Cir. 2003). The Board stated that “absent superimposed

disease or injury, service connection may not be allowed for a refractive error of the

eye, including myopia, even if visual acuity decreased in service.” Because Alvarez

“expressly testified at his . . . hearing that he did not incur any bilateral eye injury or

trauma during his active service,” the Board denied his claim. The Veterans Court

affirmed, holding that the Board had a “plausible basis for its finding that the

preponderance of the evidence was against the claim, and that decision [was] not

clearly erroneous.”

                                             II

       Under the governing statute, our jurisdiction to review decisions of the Veterans

Court is limited to “any challenge to the validity of any statute or regulation or any

interpretation thereof . . . and to interpret constitutional and statutory provisions, to the

extent presented and necessary to a decision.”         38 U.S.C. § 7292(c).      Except for

constitutional issues, we “may not review . . . a challenge to a factual determination, or

. . . a challenge to a law or regulation as applied to the facts of a particular case.” Id.




2010-7039                                    2
§ 7292(d)(2). Furthermore, this court cannot review the Department’s determination

that a veteran “did not prove a compensable present disability at the time” of his claim,

because that determination is factual. See Conley v. Peake, 543 F.3d 1301, 1305 (Fed.

Cir. 2008).

       Alvarez does not challenge the validity of any statute or regulation, nor does he

contend that this appeal presents any constitutional issue. Instead, he seeks service

connection and disability benefits because he “incurred a vision loss while on active

duty, while performing [his] assigned duties.” The Board held, however, that Alvarez

suffers from myopia, a congenital condition that is not compensable under current law.

This ruling, which involves factual issues, including the application of the Department’s

regulation quoted above to the facts of Alvarez’ case, is one we have no jurisdiction to

review.

                                    CONCLUSION

       The appeal is

                                     DISMISSED.

       No costs.




2010-7039                                  3
