Montelongo v. McDonald ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ARMANDO MONTELONGO,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1130
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2946, Judge Robert N. Davis.
______________________
Decided: February 11, 2016
______________________
ARMANDO MONTELONGO, San Antonio, TX, pro se.
MEEN GEU OH, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC for respondent-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD; BRIAN D. GRIFFIN, JONATHAN
KRISCH, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
2 MONTELONGO v. MCDONALD
Before MOORE, TARANTO, and STOLL, Circuit Judges.
PER CURIAM.
Armando Montelongo appeals from a decision by the
Court of Appeals for Veterans Claims (“Veterans Court”)
that affirmed a decision by the Board of Veterans’ Appeals
(“Board”) denying disability benefits for dizziness and
vertigo secondary to service-connected hearing loss and
tinnitus. Because we lack jurisdiction over the issues Mr.
Montelongo raises on appeal, we dismiss.
BACKGROUND
Mr. Montelongo served on active duty in the United
States Army from March 1954 to December 1958 during
the Korean Conflict Era and Peacetime. In February
2010, Mr. Montelongo filed a claim for, inter alia, service-
connected hearing loss and tinnitus. In 2014, the De-
partment of Veterans Affairs (“VA”) awarded Mr. Monte-
longo service connection for tinnitus with a 10% disability
rating effective as of the date of his claim. Mr. Montelon-
go appealed to the Board, arguing that he was also enti-
tled to service connection for a disability manifested by
dizziness and vertigo, including as secondary to his ser-
vice-connected hearing loss and tinnitus.
The Board denied Mr. Montelongo’s claim. It found,
as a matter of fact, that Mr. Montelongo did not exhibit
dizziness or vertigo during his service or within one year
of his separation from service. It further found that Mr.
Montelongo’s dizziness or vertigo was not causally related
to any injury he received during his active service or to
his service-connected disabilities. In making these find-
ings, the Board recognized that, through no fault of Mr.
Montelongo, the pertinent service treatment records were
not available for review. In such situations, the Board
explained that the VA has a heightened obligation to
explain its findings and conclusions and to carefully
consider the “benefit-of-the-doubt rule.” Resp’t’s App. 17.
MONTELONGO v. MCDONALD 3
The Board considered a number of Mr. Montelongo’s
medical records, including private records from 2011 and
2012, and VA medical records from 2012 and 2014. It
found that the private medical record concerning the
cause of Mr. Montelongo’s dizziness conflicted with the
VA medical record addressing causation, and that, of
these two records, the VA medical record was more proba-
tive. It found the private record did not articulate a
rationale for linking Mr. Montelongo’s dizziness to his
service-connected injuries and was based on factual
inaccuracies whereas the VA medical record provided a
detailed rationale as to why Mr. Montelongo’s dizziness
was at least as likely to be caused by non-service-related
injuries as service-connected injuries. It noted that, while
the VA examiner could not identify the cause of Mr.
Montelongo’s dizziness without resort to speculation, none
of the likely causes that the VA examiner did identify
were related to Mr. Montelongo’s service or his service-
connected disabilities.
The Board also found that Mr. Montelongo was neuro-
logically normal according to his separation examination
report and that, according to the most credible evidence of
record, Mr. Montelongo himself dated the onset of his
dizziness to about 2001, around 43 years after his separa-
tion from service. The Board considered whether service
connection could be granted on a presumptive basis for a
chronic disability. It determined that service connection
could not be granted on this ground because there was no
medical evidence of dizziness or vertigo occurring during
Mr. Montelongo’s service or within one year of his separa-
tion from service and because the evidence did not suffi-
ciently establish continuity of his dizziness symptoms
since his service. The Board thus found that the prepon-
derance of the evidence was against finding a link be-
tween Mr. Montelongo’s dizziness or vertigo and his
service or service-connected injuries. Because the Board
found the preponderance of the evidence was against
4 MONTELONGO v. MCDONALD
Mr. Montelongo’s claim, it reasoned that the benefit-of-
the-doubt rule did not apply.
On appeal, the Veterans Court affirmed. It deter-
mined that the Board did not clearly err in relying on the
VA medical record or in assessing the relative credibility
and weight that it gave to each medical record. It similar-
ly found that the Board did not err by not applying the
benefit-of-the-doubt rule because this rule only applies
when the evidence is equally balanced and the prepon-
derance of the evidence weighed against Mr. Montelongo’s
claim. Mr. Montelongo timely appeals.
DISCUSSION
Our jurisdiction over appeals from the Veterans Court
is limited by statute. While we have jurisdiction to review
and decide any challenge to the validity of any statute or
regulation or interpretation thereof and over relevant
questions of law, we may not review challenges to factual
determinations or to the application of a law or regulation
to the facts of a particular case unless an appeal presents
a constitutional issue. 38 U.S.C. § 7292(c), (d)(1), (d)(2).
Mr. Montelongo argues that the Veterans Court
wrongly affirmed the Board’s decision denying his claim
for dizziness and vertigo disability benefits as secondary
to his service-connected tinnitus. He argues that the
Board failed to consider whether the medical records it
relied upon were adequate, and that the Board’s decision
contradicted the VA’s 2014 ratings decision granting
service connection for tinnitus. Specifically, he argues
that the Board erred in finding the private medical record
of less probative weight than the VA medical record
because the VA relied on the private medical record when
it granted service connection for tinnitus in the 2014
ratings decision.
These challenges are either questions of fact or go to
the appropriate weight given to the evidence. Whether a
MONTELONGO v. MCDONALD 5
medical opinion is adequate is a question of fact, outside
the scope of our jurisdiction. Prinkey v. Shinseki, 735
F.3d 1375, 1383 (Fed. Cir. 2013). Similarly, we do not
have jurisdiction to review the relative weight assigned to
various portions of Mr. Montelongo’s medical history. See
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
CONCLUSION
For the foregoing reasons, the appeal is dismissed for
lack of jurisdiction.
DISMISSED
COSTS
No costs.