Case: 20-1629 Document: 43 Page: 1 Filed: 01/07/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALVA N. RASCOE,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1629
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-4760, Judge Joseph L. Toth.
______________________
Decided: January 7, 2021
______________________
MITCHELL SETH KESSLER, Cohoes, NY, for claimant-ap-
pellant.
ANN MOTTO, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by JEFFREY
B. CLARK, ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA
PREHEIM; Y. KEN LEE, DEREK SCADDEN, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
Case: 20-1629 Document: 43 Page: 2 Filed: 01/07/2021
2 RASCOE v. WILKIE
______________________
Before LOURIE, SCHALL, and DYK, Circuit Judges.
PER CURIAM.
Alva N. Rascoe appeals the decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court). The Veterans Court affirmed a decision of the
Board of Veterans’ Appeals (Board), denying him service
connection for sleep apnea and hearing loss in his right ear.
Because we lack jurisdiction, we dismiss.
BACKGROUND
Mr. Rascoe served in the U.S. Army from 1972 to 1975.
During his service, Mr. Rascoe served as a driver of heavy
vehicles in Germany.
Mr. Rascoe suffered from hearing loss prior to joining
the Army. When he enlisted in the Army, on December 15,
1971, Mr. Rascoe underwent a physical examination,
which included an audiogram to measure his hearing
threshold pre-induction. At that time, his right ear showed
signs of preexisting hearing loss. 1 Mr. Rascoe was exam-
ined again pre-separation on February 27, 1975. The pre-
separation examination showed no significant hearing loss
as compared to the pre-induction examination. Based on
the results of the pre-separation examination, for the re-
mainder of his service period, Mr. Rascoe was prohibited
1 Under
38 C.F.R. § 3.385, “impaired hearing will be
considered to be a disability when the auditory threshold
in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz
is 40 decibels or greater; or when the auditory thresholds
for at least three of the frequencies 500, 1000, 2000, 3000,
or 4000 Hertz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less
than 94 percent.”
Case: 20-1629 Document: 43 Page: 3 Filed: 01/07/2021
RASCOE v. WILKIE 3
from undertaking assignments “involving habitual or fre-
quent exposure to loud noises or firing of weapons.” J.A.
41.
Mr. Rascoe’s service treatment records do not indicate
or mention that he complained of sleep apnea or other
sleep-related issues during his period of service. He first
discovered that he suffers from sleep apnea in 2007 after a
sleep study revealed the presence of the condition.
Mr. Rascoe sought disability benefits from the Depart-
ment of Veterans Affairs (VA) for service connection for his
hearing loss and sleep apnea. In May 2018, the Board is-
sued a decision that denied Mr. Rascoe service connection
for hearing loss in his right ear and sleep apnea.
Regarding his claim to hearing loss in his right ear, the
Board concluded that “[e]ntitlement to service connection
for [aggravation of] right ear hearing loss [was] not war-
ranted.” J.A. 23. In support of this conclusion, the Board
found that Mr. Rascoe’s service treatment records revealed
that he had hearing loss in his right ear when he entered
the service in 1971, as reflected in his entrance examina-
tion. The Board further found that there was no evidence
that this preexisting right-ear hearing loss was aggravated
by his service, although Mr. Rascoe reported that he had
been exposed to potentially damaging noise. The Board
cited an examination conducted by the VA in November
2012 in which the examiner indicated that Mr. Rascoe’s
preexisting right ear hearing loss was not shown to have
been significantly worsened by his military service. Specif-
ically, the examiner concluded that “there were no signifi-
cant changes for any frequency in the right ear when
comparing [Mr. Rascoe’s] pre-induction audiogram to [his]
separation audiogram.” J.A. 23. The Board found this ex-
amination opinion highly probative and “more probative
than [Mr. Rascoe’s] lay statements describing his perceived
worsening of right ear hearing loss in service.” J.A. 24.
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4 RASCOE v. WILKIE
Regarding his sleep apnea claim, after reviewing and
weighing the evidence, the Board concluded that the pre-
ponderance of the evidence was against the claim. In
reaching that conclusion, the Board found that Mr. Ras-
coe’s service treatment records did not “mention sleep ap-
nea or any other issues regarding the Veteran’s sleeping
patterns.” J.A. 19. Importantly, the Board found that Mr.
Rascoe did not report any issues with sleeping during his
February 1975 separation examination and that he testi-
fied that he was not diagnosed with or treated for sleep ap-
nea while on active duty. The Board further found that Mr.
Rascoe “ha[d] not provided any credible lay statements or
medical evidence suggesting that his current sleep apnea
[was] related to his active duty service.” J.A. 19. The
Board did note that, during a February 2018 hearing, Mr.
Rascoe testified that he believed others had noted that he
snored very loudly while he served on active duty, but the
Board found this insufficient to establish his claim.
Mr. Rascoe appealed to the Veterans Court. Regarding
his hearing loss claim, he argued that the 2012 VA medical
opinion, which concluded that his preexisting right-ear
hearing loss was not aggravated by his service, was inade-
quate. The Veterans Court held that the Board made no
error in relying on the 2012 VA examiner’s opinion regard-
ing his preexisting right-ear hearing loss.
Concerning his sleep apnea claim, Mr. Rascoe argued
that the Board should have obtained a medical examina-
tion to determine whether his sleep apnea was related to
his service connection claim and that the Board should
have considered his lay testimony about others observing
him “fighting” in his sleep during his service period, i.e.,
apparently that he had dreams of combat. Mr. Rascoe had
mentioned this during his testimony regarding a post-trau-
matic stress disorder claim (not at issue on this appeal).
The Veterans Court held that, after considering and weigh-
ing the evidence Mr. Rascoe presented, the Board made
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RASCOE v. WILKIE 5
sufficient findings to support its conclusion that a medical
examination was not necessary to determine whether Mr.
Rascoe’s sleep apnea was related to his service.
Mr. Rascoe appeals. 2
DISCUSSION
We have limited jurisdiction to review decisions by the
Veterans Court. Wanless v. Shinseki,
618 F.3d 1333, 1336
(Fed. Cir. 2010). We have exclusive jurisdiction “to review
and decide any challenge to the validity of any statute or
regulation or any interpretation thereof . . . and to inter-
pret constitutional and statutory provisions, to the extent
presented and necessary to a decision.”
38 U.S.C.
§ 7292(c). We cannot, however, review “a challenge to a
factual determination” or “a challenge to a law or regula-
tion as applied to the facts of a particular case” absent a
constitutional issue.
Id. § 7292(d)(2).
On appeal, Mr. Rascoe challenges the Veterans Court’s
decision on several grounds. We agree with the govern-
ment that we are without jurisdiction to consider Mr. Ras-
coe’s appeal.
As to his hearing loss claim, Mr. Rascoe argues that the
Veterans Court “misinterpreted or misapplied governing
law, applied incorrect legal standards, and failed to weigh
evidence in accordance with statutory and regulatory
standards.” Appellant’s Br. 15. In support, Mr. Rascoe as-
serts an array of arguments, including that the Veterans
Court failed to apply the presumption of aggravation under
38 U.S.C. § 1153 and ignored other evidence. Mr. Rascoe
2 The Veterans Court also ordered a remand to con-
sider Mr. Rascoe’s claims for service-connected post-trau-
matic stress disorder. This claim is not at issue on this
appeal.
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6 RASCOE v. WILKIE
does not point to any portion of the Veterans Court’s deci-
sion in which it offered or advanced a new interpretation of
a regulation, statute, or other legal standard. After review-
ing the evidence before the Board and stating the relevant
law, the Veterans Court simply concluded that Mr. Rascoe
had not shown any error in the Board’s findings and con-
clusions as to the adequacy of the 2012 VA medical opinion
that Mr. Rascoe’s right-ear hearing loss was not aggra-
vated by service. Despite Mr. Rascoe’s invitation “to review
factual determinations or the application of law to the par-
ticular facts of an appeal from the Veterans Court,” we are
without jurisdiction to do so absent a constitutional issue.
Saunders v. Wilkie,
886 F.3d 1356, 1360 (Fed. Cir. 2018);
see also
38 U.S.C. § 7292(d)(2). We do not possess jurisdic-
tion to consider Mr. Rascoe’s right-ear hearing loss-related
arguments on appeal.
Mr. Rascoe also argues that the Veterans Court erred
in affirming the Board’s denial of service connection for his
sleep apnea. In Mr. Rascoe’s view, the Veterans Court
“misinterpreted and misapplied governing law, applied in-
correct legal standards, and failed to weigh evidence in ac-
cordance with statutory and regulatory standards.”
Appellant’s Br. 11. Mr. Rascoe emphasizes that the Veter-
ans Court “compartmentalized” his testimony about others’
observations of him “fighting” in his sleep as relating only
to his post-traumatic stress disorder claim.
Id. In his view,
this evidence obligated the VA to determine whether his
sleep apnea is service related. Mr. Rascoe next argues that,
because the Board did not specifically address his testimo-
nial evidence that he was observed to be “fighting” in his
sleep while weighing his sleep apnea claim, the Veterans
Court improperly made a factual determination that he
was not entitled to a medical examination on the basis of
that testimony.
We do not possess jurisdiction to consider either of Mr.
Rascoe’s sleep apnea-related arguments on appeal. Mr.
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RASCOE v. WILKIE 7
Rascoe has not identified a section of the Veterans Court’s
decision in which it offered or advanced a new interpreta-
tion of a regulation, statute, or other legal standard. Nor
did the Veterans Court make improper factual findings on
appeal. The Veterans Court’s decision simply repeated the
legal requirements that govern whether the VA must pro-
vide a medical examination and applied these require-
ments to the facts of Mr. Rascoe’s case. As a result, Mr.
Rascoe’s claim is nothing more than a challenge to the ap-
plication of well-established law to the specific facts of his
case, a question over which we lack jurisdiction.
We have considered Mr. Rascoe’s remaining arguments
but find them to be without merit. Accordingly, we dismiss
Mr. Rascoe’s appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
