Case: 22-1496 Document: 34 Page: 1 Filed: 08/23/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ZEKE L. BRYANT,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1496
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-642, Judge Coral Wong Pietsch,
Judge Joseph L. Toth, Judge Scott Laurer.
______________________
Decided: August 23, 2023
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
Also represented by AMY BETH KRETKOWSKI, Law Office of
Amy B. Kretkowski, PLC, Iowa City, IA.
DANIEL FALKNOR, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN
Case: 22-1496 Document: 34 Page: 2 Filed: 08/23/2023
2 BRYANT v. MCDONOUGH
MISHA PREHEIM; EVAN SCOTT GRANT, BRIAN D. GRIFFIN, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________
Before MOORE, Chief Judge, LOURIE and STOLL, Circuit
Judges.
STOLL, Circuit Judge.
Zeke L. Bryant appeals the decision of the United
States Court of Appeals for Veterans Claims affirming the
Board of Veteran’s Appeals denial of compensation for his
bilateral hearing loss. Because Mr. Bryant’s appeal only
raises disputes involving the application of law to fact, we
dismiss for lack of jurisdiction.
BACKGROUND
Mr. Bryant served in the U.S. Army from 1965 to 1969
and from 1970 to 1973, during which he underwent several
audiometric tests. In 2012, Mr. Bryant submitted a claim
for service connection for tinnitus and hearing loss. In
2013, Mr. Bryant underwent a Veterans Affairs (VA) ex-
amination that showed he had bilateral hearing loss. The
examiner opined that while his tinnitus was related to his
military noise exposure, his hearing loss was less likely
than not due to his active service.
The Board subsequently denied Mr. Bryant’s appeal of
his claim for service connection for hearing loss finding
that “[t]he weight of the evidence [was] against a finding
that the Veteran’s bilateral hearing loss began during ser-
vice, within one year of separation from service, or was oth-
erwise caused by his active service.” J.A. 117. The Board
considered the various evidence including: Mr. Bryant’s
1965 entrance examination; his 1969 separation examina-
tion which showed some hearing loss across all frequencies;
his 1970 reenlistment examination which showed improve-
ments in his hearing; his 1972 separation examination,
Case: 22-1496 Document: 34 Page: 3 Filed: 08/23/2023
BRYANT v. MCDONOUGH 3
which showed slight hearing loss across all frequencies; his
1975 audiological test during his reserve service, which in-
dicated improvements in his hearing abilities and that
Mr. Bryant denied having any hearing loss 1; his 2009
treatment records, which also indicated that Mr. Bryant
denied he was experiencing hearing loss; and the exam-
iner’s report from the 2013 VA examination. The Board
also noted that Mr. Bryant had “not submitted any medical
evidence supporting his assertion that his bilateral hearing
loss [was] due to his active service.” J.A. 123.
The Veterans Court affirmed the Board’s decision, re-
jecting Mr. Bryant’s arguments that the 2013 VA exam
was inadequate and that the Board did not comply with
Hensley v. Brown, 5 Vet. App. 155 (1993). Mr. Bryant filed
a motion for reconsideration or, alternatively, panel re-
view. The Veterans Court granted the motion for panel re-
view and the majority adopted the prior decision. The
majority held that Mr. Bryant failed to demonstrate that
(1) the prior decision overlooked or misunderstood a fact or
point of law, or (2) there was any conflict with precedential
decisions including Hensley. Judge Pietsch dissented stat-
ing that a panel decision on the merits should be issued to
clarify the Court’s holding in Hensley. Mr. Bryant now ap-
peals. We have jurisdiction under 38 U.S.C. § 7292.
DISCUSSION
Our jurisdiction over decisions of the Veterans Court is
limited. We may review “the validity of a decision of the
[Veterans] Court on a rule of law or of any statute or regu-
lation . . . or any interpretation thereof (other than a deter-
mination as to a factual matter) that was relied on by the
[Veterans] Court in making the decision.” 38 U.S.C.
1 The Board observed that Mr. Bryant’s 1965, 1969,
1970, 1972, and 1975 audiological test results did not indi-
cate hearing loss for VA purposes.
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4 BRYANT v. MCDONOUGH
§ 7292(a). Except with respect to constitutional issues, 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).
On appeal, Mr. Bryant argues that the Veterans Court
misinterpreted 38 U.S.C. § 1110 and failed to comply with
its decision in Hensley. In particular, Mr. Bryant contends
that the Veterans Court misinterpreted § 1110 by not con-
cluding that his service medical records and VA examina-
tion for hearing loss were sufficient to demonstrate that he
had a “disability resulting from personal injury suffered . . .
in [the] line of duty” as required by the statute. In Hensley,
the Veterans Court held that “when a disease was not ini-
tially manifested during service or within the applicable
presumption period, ‘direct’ service connection may never-
theless be established by evidence demonstrating that the
disease was in fact incurred or aggravated during the vet-
eran’s service.” 5 Vet. App. at 158. Mr. Bryant argues that
the Veterans Court did not comply with Hensley because it
affirmed the Board decision despite agreeing that Mr. Bry-
ant has a current disability, experienced noise exposure in
service, and has some service records showing hearing loss.
The government responds that we lack jurisdiction to
hear this appeal because the Veterans Court did not inter-
pret any statute or regulation but instead applied estab-
lished law to the facts. Specifically, the government
asserts that reweighing or reconsideration of evidence is
outside the scope of our jurisdiction. Regarding § 1110, the
government argues that the application of a statute to the
particular facts of a case is generally outside of our juris-
diction. As for Mr. Bryant’s Hensley argument, the govern-
ment argues that the Veterans Court did not violate
Hensley because the Board did not deny Mr. Bryant service
connection based on the fact that his hearing loss was nor-
mal at separation. Instead, the Board found, and the Vet-
erans Court affirmed, that his hearing loss was not caused
Case: 22-1496 Document: 34 Page: 5 Filed: 08/23/2023
BRYANT v. MCDONOUGH 5
by his active service, a factual finding that Mr. Bryant dis-
agrees with.
We agree with the government. We lack jurisdiction to
entertain Mr. Bryant’s appeal, which consists of challenges
to the Veterans Court’s review of the Board’s factual deter-
minations and its application of law to particular facts.
The heart of Mr. Bryant’s appeal involves a challenge to a
factual finding—whether Mr. Bryant’s post-service hear-
ing loss diagnosed in 2013 was caused by his service, given
all the relevant facts and considerations including the var-
ious pieces of medical evidence. Reviewing that eviden-
tiary finding is outside of our jurisdiction. Mr. Bryant’s
appeal has not raised any questions that we have jurisdic-
tion to review. As such, we dismiss this appeal for lack of
jurisdiction.
DISMISSED
COSTS
No costs.