Case: 22-1619 Document: 33 Page: 1 Filed: 07/19/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TONY L. GOLLIDAY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1619
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-6386, Judge Scott Laurer.
______________________
Decided: July 19, 2023
______________________
SEAN A. RAVIN, Miami, FL, argued for claimant-appel-
lant.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY; Y. KEN LEE, SAMANTHA ANN SYVERSON, Office
of General Counsel, United States Department of Veterans
Affairs, WASHINGTON, DC.
Case: 22-1619 Document: 33 Page: 2 Filed: 07/19/2023
2 GOLLIDAY v. MCDONOUGH
______________________
Before HUGHES, LINN, and STARK, Circuit Judges.
HUGHES, Circuit Judge.
Tony Golliday appeals a decision from the Court of Ap-
peals for Veterans Claims denying service connection for a
right knee disability and a right ankle disability. While this
court has jurisdiction over certain constitutional and legal
issues, we are statutorily prohibited from reviewing the ap-
plication of law to facts.
38 U.S.C. § 7292(d)(2). Thus, we
dismiss this appeal for lack of jurisdiction.
I
Mr. Golliday served honorably in the United States
Army from November 1979 until February 1983. In April
2004, Mr. Golliday filed a claim with the VA, seeking disa-
bility benefits for right knee and ankle conditions that he
stated began during his service. At first, the regional office
denied service connection for Mr. Golliday’s claim, basing
its finding in part on the absence of some of Mr. Golliday’s
service records. Mr. Golliday’s claim was then remanded by
the Board and by the Veterans Court several times be-
tween 2011 and 2019 to continue developing the claim and
to allow the agency to attempt to locate Mr. Golliday’s ab-
sent service medical records. Eventually, the agency deter-
mined that it could not locate any other service medical
records for Mr. Golliday. Then, the regional office and the
Board relied on other available evidence in the record to
deny service connection, such as Mr. Golliday’s failure to
report any right knee or ankle issues during his discharge
evaluation, and other medical records showing that the in-
juries more likely occurred post-service. The Veterans
Court affirmed, finding that the medical records that could
be found indicated both of his injuries were less likely
caused by his service, and more likely caused by post-ser-
vice events. Mr. Golliday now appeals.
Case: 22-1619 Document: 33 Page: 3 Filed: 07/19/2023
GOLLIDAY v. MCDONOUGH 3
II
Our jurisdiction to review decisions by the Veterans
Court is limited by statute.
38 U.S.C. § 7292(d); see Wan-
less v. Shinseki,
618 F.3d 1333, 1336 (Fed. Cir. 2010). We
have exclusive jurisdiction to review and decide challenges
to the validity of any statute or regulation, or to any inter-
pretation of statutory, regulatory, or constitutional provi-
sions if such provisions are presented and necessary to a
decision.
38 U.S.C. § 7292(c). But we lack jurisdiction to re-
view challenges to factual determinations, or challenges to
the application of law or regulation to the facts of a partic-
ular case, unless an appeal from a Veterans Court decision
presents a constitutional issue.
38 U.S.C. § 7292(d)(2).
Mr. Golliday’s sole argument on appeal is that the Vet-
erans Court erred by basing its finding on the absence of
service treatment records, in violation of the Secretary’s
statutory duty to assist a claimant in obtaining evidence to
substantiate a claim. 38 U.S.C. § 5103A(d). But neither the
Board nor the Veterans Court relied on the absence of med-
ical records for their findings. Instead, the Board and the
Veterans Court, while acknowledging that certain medical
records could not be located, based their findings on the
medical records that could be obtained. In fact, as dis-
cussed above, Mr. Golliday’s claims were remanded several
times to continue to consider Mr. Golliday’s claim in light
of available evidence. Thus, the decision we are reviewing
would not be altered even if we were to adopt the position
Mr. Golliday advocates—that the absence of medical rec-
ords is not pertinent evidence when the government loses
a veteran’s service medical records—so we lack jurisdiction
over this appeal. See Cromer v. Nicholson,
455 F.3d 1346,
1348–49 (Fed. Cir. 2006). Moreover, reviewing Mr. Gol-
liday’s appeal would require us to review the application of
law to the facts of Mr. Golliday’s case, which we are prohib-
ited from doing by statute. Because Mr. Golliday’s appeal
is directed to applications of law to the facts of his claim,
Case: 22-1619 Document: 33 Page: 4 Filed: 07/19/2023
4 GOLLIDAY v. MCDONOUGH
we lack jurisdiction to review Mr. Golliday’s appeal. Ac-
cordingly, we dismiss this appeal.
DISMISSED
COSTS
No costs.
