NOTE: This disposition is nonprecedential.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

______________________ 

HERBERT HIGHTOWER, Temple, TX, pro se.

 LIRIDONA SINANI, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, 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. 

______________________ 

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2 HIGHTOWER v. MCDONOUGH

Before HUGHES, STOLL, and STARK, Circuit Judges.

PER CURIAM. 

Herbert Hightower, a veteran of the U.S. Air Force, appeals 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 tinnitus greater than 10%. Because Mr. Hightower’s arguments 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 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 Board 

found that the available schedular evaluation for this disability is adequate because the rating criteria reasonably 

describes Mr. Hightower’s disability level and symptoms. 

The Board 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 Supplemental Appendix filed with the Secretary’s brief. 

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HIGHTOWER v. MCDONOUGH 3

On appeal, the Veterans Court affirmed the Board’s decision. The Veterans Court rejected Mr. Hightower’s argument 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. 

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 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, 1354 (Fed. Cir. 2002) (explaining 

that the interpretation of a statute or regulation occurs 

when the Court elaborates upon its meaning). We therefore 

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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 Veterans 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] Denton Texas Health Care Center audiologic 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 cites 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 Adjudication Procedure Manual. 1 Vet. App. at 104.

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 here 

involved 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 “the Veterans Administration and its agencies 

continually made ambiguous claims related to Mr. Hightower’s service-connected disability having no effect on his 

3 Citations to the Appellant’s briefs are to the ECF 

page numbers. 

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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. 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

COSTS

No costs.

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