N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ HERBERT HIGHTOWER, Claimant

- Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS 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

______________________

H ERBERT H IGHTOWER , Temple, TX, pro se.

L IRIDONA S INANI , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent

- appellee. Also represented by B RIAN M. B OYNTON , P ATRICIA M. M C C ARTHY , L OREN M ISHA P REHEIM ; B RIAN D. G RIFFIN , A NDREW J. S TEINBERG , Office of General Counsel, United States Department of Ve terans Affairs , Washington, DC

.

______________________ Case: 21-1665 Document: 33 Page: 1 Filed: 03/21/2023HIGHTOWER v. MCDONOUGH 2

Before H UGHES , S TOLL , and S TARK , Circuit Judges

. P ER C URIAM

.Herbert Hightower, a veteran of the U.S. Air Force, appeals a decision of the United States Court of Appeals for Veterans Claims affirmin g a Board of Veterans’ Appeals ’ decision denying Mr. Hightower a disability rating for tinnitus greater than 10%. Because Mr. Hightower’s arguments are beyond the limited jurisdiction of our court, w e 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 service -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 B oardfound that the available schedular evaluation for this disability is adequate because the rating criteria reasonably describes Mr. Hightower’s disability level and symptom s

. The B oard explained that the record lacked evidence showing that Mr. Hightower’s “tinnitus is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis.” S.A. 17. 2

1 Mr. Hightower also appealed rating determinations of other maladies not relevant to this appeal.

2 “S.A.” refers to pages in the S upplemental A ppendix filed with the Secretary’s brief. Case: 21-1665 Document: 33 Page: 2 Filed: 03/21/2023HIGHTOWER v. MCDONOUGH 3

On appeal, the Veterans Court affirmed the Board’s decision. The Veterans Court rejected Mr. Hightower’s a rgument that the Board failed to consider his symptoms of dementia and buildup of excess cerumen

— which Mr. Hightower attributed to his tinnitus

— in its extra

- schedular determination

. The Veterans Court explained that Mr. Hightower failed to present evidence relating those symptoms to his tinnitus. S.A. 5

. It also noted that Mr. Hightower pointed to no other symptoms or tinnitus -related functional limitations that could be considered exceptional. Id. Accordingly, the Veterans Court concluded that Mr. Hightowe r’s tinnitus symptoms are contemplated by his schedular rating and that the B oard 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

- Vaz quez 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 interpretationthereof” by the Veterans Court, and “interpret constitutional 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 relevant 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, 135 4 (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: 3 Filed: 03/21/2023HIGHTOWER v. MCDONOUGH 4

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 Veterans Court misweighed the evidence. See , e.g. , Appellant’s Br. at 21 (arguing that the Board erred in crediting “its ownunsubstantiated medical opinion and ignor[ing the] Denton Texas Health C are Center audi ologic examination”); see also id. at 3– 4, 15, 18

– 22, 25

– 26. 3 But we may not review 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 opinion is a matter beyond our jurisdictional reach, because the underlying question is one of fact.”)

. Mr. Hightower also argues that the Veterans Court interpreted a statute or regulation and cit es Fugere v. Derwinski , 1 Vet. App. 103 (1990) and Bentley v. Derwinski , 1 Vet. App. 28 (1990) , in support of this argument

. Appellant’s Br. at 2

. Both cases, however, are irrelevant to this appeal

. Fugere concerns notice and opportunity to comment on a proposed deletion of a protective provision in the VA Adjudic ation Procedure Manual. 1 Vet. App. at 10 4. Bentley concerns notice to the veteran of a reduction in rating and an opportunity to respond. 1 Vet. App. at 29 . Neither case suggests that the Veterans Court’s decision hereinvolved the validity or interpretation of a statue or regulation.
Finally, in connection with an assertion that the Veterans Court decided a constitutional issue, Mr. Hightower argues that “t he Veterans Administration and its agencies continually made ambiguous claims related to Mr. Hightow er’s service

- connected disability having no effect on his

3 Citations to the Appellant’s briefs are to the ECF page number s. Case: 21-1665 Document: 33 Page: 4 Filed: 03/21/2023HIGHTOWER 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. Hightower’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) (explaining that an “ [ appellant ] ’s characterization of [a] question as constitutional in nature does not confer upon [this Court] jurisdiction that [it] otherwise lack[s].”).

III
We have considered Mr. Hightower’s remaining arguments and find them unpersuasive. For the preceding reasons, we dismiss Mr. Hightower’s appeal for lack of jurisdiction.

DISMISSED

C OSTS

No costs. Case: 21-1665 Document: 33 Page: 5 Filed: 03/21/2023