        NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 VICTOR WILLIAMS,
                  Claimant-Appellant,
                           v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
              __________________________

                      2011-7116
              __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-348, Judge William A.
Moorman.
             __________________________

              Decided: November 15, 2011
              ___________________________

   VICTOR WILLIAMS, Dumfries, Virginia, pro se.

    JOSHUA A. MANDLEBAUM, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of coun-
WILLIAMS   v. DVA                                         2


sel on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and THOMAS HERNANDEZ, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
                __________________________

  Before RADER, Chief Judge, DYK, and REYNA, Circuit
                       Judges.
PER CURIAM.
     Victor Williams (“Williams”) appeals from the U.S.
Court of Appeals for Veterans Claims (“Veterans Court”).
That court affirmed the denial by the Board of Veterans’
Appeals (“Board”) of his claim of clear and unmistakable
error (“CUE”) in a 1993 disability rating decision. We
affirm in part, vacate in part, and remand.
                       BACKGROUND
     On February 18, 1993, while on active duty, Williams
had his right kidney removed for cancer treatment. He
continued on active duty until July 26, 1993. In Septem-
ber 1993, approximately seven months after the surgery,
a Department of Veterans Affairs Regional Office (“RO”)
applied Diagnostic Codes (“DC”) 7528 and 7500 in 38
C.F.R. § 4.115a (1993) to grant Williams a 100 percent
disability rating until February 1994 (one year after his
surgery), and a 30 percent disability rating thereafter (for
his removed kidney), effective March 1, 1994. Williams
filed a Notice of Disagreement but did not perfect his
appeal. In December 2005, Williams filed a claim alleging
CUE in this 1993 decision. In its 2009 decision, the Board
found no CUE, and the Veterans Court affirmed. Wil-
liams v. Shinseki, No. 09-0348, 2010 WL 5421350, at *3
(Vet. App. Dec. 28, 2010). Williams then filed this appeal.
3                                            WILLIAMS   v. DVA


                        DISCUSSION
    Under 38 U.S.C. § 7292(c), our jurisdiction to review
Veterans Court decisions is limited to “challenge[s] to the
validity of any statute or regulation or any interpretation
thereof.” We may not review “a challenge to a factual
determination” unless the appeal presents a constitu-
tional issue. Id. § 7292(d)(2). A final RO decision may be
attacked collaterally if “the evidence of record at the time
of the original decision” establishes a CUE that is “out-
come determinative.” Cook v. Principi, 318 F.3d 1334,
1344 (Fed. Cir. 2002) (en banc); see 38 U.S.C. § 5109A.
     Williams argues that there is CUE in the 1993 RO de-
cision to reduce his disability rating because the decision
violated 38 C.F.R. § 4.115a DC 7528 (1993). This provi-
sion states:
    The rating under code 7528 will be continued for 1
    year following the cessation of surgical, X-ray
    antineoplastic chemotherapy or other therapeutic
    procedure. At this point, if there has been no local
    recurrence or metastases, the rating will be made
    on residuals, minimum 10 [percent disability rat-
    ing].
Id. (emphasis added). This regulation was amended,
effective February 14, 1994, to require a “mandatory VA
examination at the expiration of six months” and to state
that “any change in evaluation” should be “based upon
that or any subsequent examination.” 38 C.F.R. § 4.115b
DC 7528 (1994); 59 Fed. Reg. 2523, 2527 (Jan. 18, 1994).
    Williams’s argument is that the RO committed CUE
by making a rating on residuals in September 1993, when
the effective regulation stated that the 100 percent “rat-
ing under code 7528 will be continued for 1 year” and that
“[a]t this point . . . the rating will be made on residuals.”
WILLIAMS   v. DVA                                        4


38 C.F.R. § 4.115a DC 7528 (1993) (emphasis added).
Williams argues that the RO should have waited until
March 1994—one year after his surgery—to make a
rating on residuals, and that had the RO done so, it would
have been required under the amended regulation to base
this rating on a medical examination. See 38 C.F.R.
§ 4.115b DC 7528 (1994).
    This issue was properly raised below in both Wil-
liams’s opening and reply briefs before the Veterans
Court. See Brief of the Appellant at 7-8, Williams v.
Shinseki, 2010 WL 5421350 (arguing that “the plain
language” of the 1993 regulation “referred to an assess-
ment ‘at this point,’ i.e. at the end of the one-year 100%
rating period” and that “[t]he Board ignored this problem
of the timing of the RO’s assessment”); Reply Brief of the
Appellant at 3, Williams v. Shinseki, 2010 WL 5421350
(arguing that the amended regulation for DC 7528 had
“an explicit examination requirement . . . by the end of
February 1994 when Mr. Williams’s condition should
have been evaluated”). However, this issue was not
addressed by the Veterans Court or by the government in
its informal brief in this Court. Without the benefit of
briefing by the government or a decision by the Veterans
Court we are reluctant to address this issue. We there-
fore vacate and remand for the Veterans Court to address
whether the 1993 regulation for DC 7528 required the
rating on residuals to be made at the end of one year,
rather than, as here, only seven months after Williams’s
surgery, and, if so, whether a medical examination was
required. Even if the Veterans Court determines that the
RO was required to wait until one year after Williams’s
surgery to address his rating for residuals, Williams, of
course, would still be required to show that this error was
outcome determinative, see Cook v. Principi, 318 F.3d at
5                                          WILLIAMS   v. DVA


1344, an issue that is beyond our jurisdiction, see 38
U.S.C. § 7292(d)(2).
    Williams’s remaining arguments are without merit,
and we affirm as to these issues. First, he argues that the
regulation in effect in 1993 itself required a medical
examination to make a rating on residuals. The plain text
of the regulation, however, includes no such requirement.
Second, he contends that the VA denied him due process
by not complying with its regulations. But arguing that
an action was contrary to regulations does not raise a
constitutional issue. See Guillory v. Shinseki, 603 F.3d
981, 987-88 (Fed. Cir. 2010).
    AFFIRMED-IN-PART, VACATED-IN-PART, AND
                 REMANDED.
                          COSTS
     No costs.
