Case: 20-2197 Document: 30 Page: 1 Filed: 10/14/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TONY G. GALVAN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-2197
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-4421, Judge Joseph L. Falvey,
Jr.
______________________
Decided: October 14, 2021
______________________
TONY G. GALVAN, Port Lavaca, TX, pro se.
BRENDAN DAVID JORDAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, ERIC P. BRUSKIN, MARTIN F.
HOCKEY, JR.
______________________
Case: 20-2197 Document: 30 Page: 2 Filed: 10/14/2021
2 GALVAN v. MCDONOUGH
Before MOORE, Chief Judge, BRYSON and PROST, Circuit
Judges.
PER CURIAM.
Tony G. Galvan appeals a decision of the U.S. Court of
Appeals for Veterans Claims (Veterans Court) dismissing
his appeal challenging two Board of Veterans’ Appeals
(Board) decisions—one on the merits and one on reconsid-
eration. We dismiss for lack of jurisdiction.
BACKGROUND
Mr. Galvan served in the U.S. Army from 1965 until
1967. Years after being discharged, Mr. Galvan began to
experience bilateral hearing loss. In October 2006, the De-
partment of Veteran Affairs (VA) determined that Mr. Gal-
van’s hearing loss was service connected but not
compensable. In June 2014, Mr. Galvan filed a claim for a
compensable rating for his bilateral hearing loss, arguing
that his hearing worsened. In December 2014, after an au-
diologist examined Mr. Galvan, the VA denied Mr. Gal-
van’s claim because the audiologist’s findings were
insufficient to warrant a compensable rating. Mr. Galvan
appealed the decision, and the Board affirmed. The Board
also declined to consider Mr. Galvan’s argument related to
a separate claim for vertigo stemming from his bilateral
hearing loss. Mr. Galvan then filed a motion for reconsid-
eration, which the Chairman of the Board denied. Mr. Gal-
van appealed both decisions to the Veterans Court. In
April 2020, the Veterans Court dismissed Mr. Galvan’s ap-
peal, reasoning that he failed to articulate a legal basis for
granting reconsideration and that the court lacked juris-
diction over Mr. Galvan’s vertigo claim. Mr. Galvan ap-
peals.
DISCUSSION
Our ability to review a decision of the Veterans Court
is limited. We have jurisdiction to review “the validity of a
decision of the [Veterans] Court on a rule of law or of any
Case: 20-2197 Document: 30 Page: 3 Filed: 10/14/2021
GALVAN v. MCDONOUGH 3
statute or regulation . . . or any interpretation thereof . . .
that was relied on by the [Veterans] Court in making the
decision.” 38 U.S.C. § 7292(a); see also id. § 7292(c). Ex-
cept to the extent that an appeal presents a constitutional
issue, however, we “may not review (A) a challenge to a fac-
tual determination, or (B) a challenge to a law or regulation
as applied to the facts of a particular case.” Id. § 7292(d)(2).
Mr. Galvan raises three issues. First, whether the Vet-
erans Court denied him due process and misapplied the
standard of review for a motion for reconsideration. Sec-
ond, whether the Veterans Court misapplied 38 C.F.R.
§ 3.310. And third, whether the Veterans Court incorrectly
held that it lacked jurisdiction over his vertigo claim.
Regarding due process, Mr. Galvan first alleges that
the Veterans Court denied him due process by confusing
his Motion for Reconsideration with that of another vet-
eran, Arthur C. Gonzalez. However, Mr. Galvan does not
cite, and we do not discern, any evidence that the Veterans
Court made such an error. Because this argument is un-
supported, it does not raise a constitutional challenge
within the scope of our jurisdiction. See 38 U.S.C.
§ 7292(c).
Mr. Galvan next argues that the Veterans Court mis-
applied 38 C.F.R. § 3.310 because the audiologist’s final re-
port was not sufficiently detailed and failed to fully
describe certain effects associated with hearing loss. Set-
ting aside that § 3.310 is irrelevant to Mr. Galvan’s argu-
ment, 1 we lack jurisdiction to address this argument
because the adequacy of the audiologist final report is a
factual determination beyond our review, see 38 U.S.C.
1 Section 3.310 concerns the circumstances under
which “[d]isabilities that are proximately due to, or aggra-
vated by, service-connected disease or injury” will be
deemed service connected.
Case: 20-2197 Document: 30 Page: 4 Filed: 10/14/2021
4 GALVAN v. MCDONOUGH
§ 7292(d)(2)(A); Prinkey v. Shinseki, 735 F.3d 1375, 1383
(Fed. Cir. 2013) (“[T]he sufficiency of a medical opinion is a
matter beyond our jurisdictional reach, because the under-
lying question is one of fact.”).
Lastly, regarding his vertigo claim, Mr. Galvan ap-
pears to argue that the Veterans Court had jurisdiction to
review that claim because he raised it before the Board.
But Mr. Galvan fails to address the Board’s underlying lack
of jurisdiction. The Board lacked jurisdiction over Mr. Gal-
van’s vertigo claim because he had already tried, lost, and
failed to appeal that claim in 2016. S.A. 4. Because the
Board lacked jurisdiction over Mr. Galvan’s vertigo claim,
the Veterans Court lacked jurisdiction and so do we. See
38 U.S.C. §§ 7252, 7292; Howard v. Gober, 220 F.3d 1341,
1344 (Fed. Cir. 2000) (noting that the Veteran Court’s ju-
risdiction “is premised on and defined by the Board’s deci-
sion concerning the matter being appealed,” and holding
that, “when the Board has not rendered a decision on a par-
ticular issue, the [Veterans Court] has no jurisdiction to
consider it”).
CONCLUSION
Because Mr. Galvan’s appeal of the Veterans Court’s
decision fails to raise a question within the scope of our ju-
risdiction, we dismiss.
DISMISSED
COSTS
No costs.