Galvan v. McDonough

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        NOTE: This disposition is nonprecedential.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.
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 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.