Case: 21-1665 Document: 33 Page: 1 Filed: 03/21/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HERBERT HIGHTOWER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETER-
ANS AFFAIRS,
Respondent-Appellee
______________________
2021-1665
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-1188, Judge Michael P. Allen.
______________________
Decided: March 21, 2023
______________________
HERBERT HIGHTOWER, Temple, TX, pro se.
LIRIDONA SINANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA
PREHEIM; BRIAN D. GRIFFIN, ANDREW J. STEINBERG, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Case: 21-1665 Document: 33 Page: 2 Filed: 03/21/2023
2 HIGHTOWER v. MCDONOUGH
Before HUGHES, STOLL, and STARK, Circuit Judges.
PER CURIAM.
Herbert Hightower, a veteran of the U.S. Air Force, ap-
peals a decision of the United States Court of Appeals for
Veterans Claims affirming a Board of Veterans’ Appeals’
decision denying Mr. Hightower a disability rating for tin-
nitus greater than 10%. Because Mr. Hightower’s argu-
ments are beyond the limited jurisdiction of our court, we
dismiss the appeal.
I
Mr. Hightower served in the Air Force from October
1954 to April 1967. The Department of Veterans Affairs
awarded Mr. Hightower a 10% disability rating for his ser-
vice-connected tinnitus, the maximum authorized by the
rating schedule,
38 C.F.R. § 4.87, Diagnostic Code 6260.
Mr. Hightower then filed a claim for increased evaluation
that a VA regional office thereafter denied. The regional
office also determined that Mr. Hightower’s case did not
warrant an extra-schedular rating under
38 C.F.R.
§ 3.321(b)(1).
Mr. Hightower appealed to the Board. 1 The Board
found that the available schedular evaluation for this dis-
ability is adequate because the rating criteria reasonably
describes Mr. Hightower’s disability level and symptoms.
The Board explained that the record lacked evidence show-
ing that Mr. Hightower’s “tinnitus is so exceptional or un-
usual as to warrant the assignment of a higher rating on
an extraschedular basis.” S.A. 17. 2
1 Mr. Hightower also appealed rating determina-
tions of other maladies not relevant to this appeal.
2 “S.A.” refers to pages in the Supplemental Appen-
dix filed with the Secretary’s brief.
Case: 21-1665 Document: 33 Page: 3 Filed: 03/21/2023
HIGHTOWER v. MCDONOUGH 3
On appeal, the Veterans Court affirmed the Board’s de-
cision. The Veterans Court rejected Mr. Hightower’s argu-
ment that the Board failed to consider his symptoms of
dementia and buildup of excess cerumen—which Mr. High-
tower attributed to his tinnitus—in its extra-schedular de-
termination. The Veterans Court explained that Mr.
Hightower failed to present evidence relating those symp-
toms to his tinnitus. S.A. 5. It also noted that Mr. High-
tower pointed to no other symptoms or tinnitus-related
functional limitations that could be considered exceptional.
Id. Accordingly, the Veterans Court concluded that Mr.
Hightower’s tinnitus symptoms are contemplated by his
schedular rating and that the Board did not err in finding
that an extra-schedular rating was not warranted.
Id.
II
“Our jurisdiction to review decisions of the Veterans
Court is limited by statute.” Flores-Vazquez v. McDonough,
996 F.3d 1321, 1325 (Fed. Cir. 2021). Under
38 U.S.C.
§ 7292(c), we may “review and decide any challenge to the
validity of any statute or regulation or any interpretation
thereof” by the Veterans Court, and “interpret constitu-
tional and statutory provisions, to the extent presented and
necessary to a decision.” However, 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.”
Id. § 7292(d)(2).
In this case, the Veterans Court did not interpret any
statute or regulation. Instead, it simply applied the rele-
vant law—
38 U.S.C. § 4.87, DC 6220, and
38 C.F.R.
§ 3.321(b)(1)—to the facts. In so doing, the Veterans Court
did not elaborate upon the meaning of these provisions or
any other regulation or statute. See S.A. 2–6; Graves v.
Principi,
294 F.3d 1350, 1354 (Fed. Cir. 2002) (explaining
that the interpretation of a statute or regulation occurs
when the Court elaborates upon its meaning). We therefore
Case: 21-1665 Document: 33 Page: 4 Filed: 03/21/2023
4 HIGHTOWER v. MCDONOUGH
lack jurisdiction to review the Veterans Court’s decision.
38
U.S.C. § 7292(d)(2).
In arguing that we do have jurisdiction to review the
decision, Mr. Hightower repeatedly asserts that the Veter-
ans Court misweighed the evidence. See, e.g., Appellant’s
Br. at 21 (arguing that the Board erred in crediting “its own
unsubstantiated medical opinion and ignor[ing the] Den-
ton Texas Health Care Center audiologic examination”);
see also
id. at 3–4, 15, 18–22, 25–26. 3 But we may not re-
view challenges to factual determinations.
38 U.S.C.
§ 7292(d)(2)(A); see also Prinkey v. Shinseki,
735 F.3d 1375,
1383 (Fed. Cir. 2013) (“[T]he sufficiency of a medical opin-
ion is a matter beyond our jurisdictional reach, because the
underlying question is one of fact.”).
Mr. Hightower also argues that the Veterans Court in-
terpreted a statute or regulation and cites Fugere v. Der-
winski,
1 Vet. App. 103 (1990) and Bentley v. Derwinski,
1
Vet. App. 28 (1990), in support of this argument. Appel-
lant’s Br. at 2. Both cases, however, are irrelevant to this
appeal. Fugere concerns notice and opportunity to com-
ment on a proposed deletion of a protective provision in the
VA Adjudication Procedure Manual. 1 Vet. App. at 104.
Bentley concerns notice to the veteran of a reduction in rat-
ing and an opportunity to respond. 1 Vet. App. at 29. Nei-
ther case suggests that the Veterans Court’s decision here
involved the validity or interpretation of a statue or regu-
lation.
Finally, in connection with an assertion that the Veter-
ans Court decided a constitutional issue, Mr. Hightower ar-
gues that “the Veterans Administration and its agencies
continually made ambiguous claims related to Mr. High-
tower’s service-connected disability having no effect on his
3 Citations to the Appellant’s briefs are to the ECF
page numbers.
Case: 21-1665 Document: 33 Page: 5 Filed: 03/21/2023
HIGHTOWER v. MCDONOUGH 5
daily life nor his employment abilities” and that “these
false ambiguous claims denied him prosperity, health, and
well-being.” Appellant’s Br. at 3, 23 (cleaned up). Mr. High-
tower’s assertion that the VA examiner made contradictory
notes regarding his tinnitus is, at most, a challenge to a
factual determination and not a constitutional one. See
Helfer v. West,
174 F.3d 1332, 1335 (Fed. Cir. 1999) (ex-
plaining that an “[appellant]’s characterization of [a] ques-
tion as constitutional in nature does not confer upon [this
Court] jurisdiction that [it] otherwise lack[s].”).
III
We have considered Mr. Hightower’s remaining argu-
ments and find them unpersuasive. For the preceding rea-
sons, we dismiss Mr. Hightower’s appeal for lack of
jurisdiction.
DISMISSED
COSTS
No costs.
