NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-7045 WALTER W. GREENE, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Walter W. Greene , of Federalsburg, Maryland, pro se. Lauren A. Weeman , Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Justice, of Washington, DC, fo r respondent-appellee. With her on the brief were Jeanne E. Davidson , Director, and Martin F. Hockey, Jr. , Assistant Director. Of counsel on the brief were David J. Barrans , Deputy Assistant General Counsel, and Amanda R. Blackmon , Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Judge William A. MoormanNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-7045

WALTER W. GREENE, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Appeal from the United States Court of Appeals for Vete rans Claims in 07-0821, Judge William A. Moorman.

__________________________ DECIDED: June 4, 2009

__________________________

Before MAYER, GAJARSA, and DYK, Circuit Judges

. PER CURIAM. Walter W. Greene appeals the decision of the United States Co urt of Appeals for Veterans Claims (“Veterans Court”), Greene v. Peake , No. 07-0821 (Vet. App. Sept. 30, 2008), affirming the denial of service connec tion for bilateral hearing loss. Because Mr. Greene seeks review of the Veterans Court’s factual determinations, we dismiss for lack of jurisdiction.BACKGROUND Mr. Greene served on active duty in the U. S. Army from October 1955 to October 1958 and from November 1958 to January 1964. During his service, he never complained of problems wit h his hearing. In 1974, Mr. Greene required surgery for removal of a brain tumor. In July 2002, he filed a claim for service connection for hearing loss. The regional offi ce (“RO”) of the Department of Veterans Affairs (“VA”) denied the claim, finding that Mr. Greene fa iled to establish a connection between his service and his hearing loss. The RO based its determi nation on Mr. Greene’s statement to a physician t hat the hearing loss began suddenly after the surgery. Mr. Greene appealed t he RO’s decision to the Board of Veterans’ Appeals (“Board”). The Board found most persuasiv e the medical evidenc e showing that his hearing loss was unrelated to his military service. Alth ough one examiner opined that Mr. Greene’s hearing loss was service-connect ed, she admitted that she did not have access to Mr. Greene’s service medical record s (“SMRs”), and thus could not provide a more definitive opinion. In contrast, anot her examiner, who had access to Mr. Greene’s SMRs, concluded that his h earing loss was unrelated to his military service. Additionally, Mr. Greene testified before th e Board that he was exposed to loud noise during service. The Board found persuasiv e the opinion of t he examiner who had access the SMRs, and held that there was no persuasive evidence that Mr. Greene’s hearing loss was related to his service. Therefore, the Board denied Mr. Greene’s claim. Mr. Greene appealed to the Veterans Court, arguing that the Board’s decision was clearly erroneous. The Veterans C ourt found that the Bo ard had properly

2009-7045 2considered all evidence of record, and t hat the Board’s decis ion was not clearly erroneous. Mr. Greene timely filed this appeal. DISCUSSION The scope of our review of a Veterans Court decision is limited by statute. See 38 U.S.C. § 7292. Under § 7292(a), we may review a decision by the Veterans Court with respect to the validity of “any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decision.” We must a ffirm a Veterans Court decision unless it is “(A) arbitrary, capricious, an abuse of discr etion, or otherwise not in accordance with law; (B) contrary to constitutional right, powe r, privilege, or immunity; (C) in excess of statutory jurisdiction, aut hority, or limitations, or in viol ation of a statut ory right; or (D) without observance of proc edure required by law.” Id. § 7292(d)(1). Further, absent a constitutional issue, we may not review challenges to factual determinations or challenges to the applic ation of a law or r egulation to facts. Id. § 7292(d)(2); see also McGee v. Peake , 511 F.3d 1352, 1355 (Fed. Cir. 2008). The VA argues that we lack jurisdicti on over this appeal under 38 U.S.C. § 7292(d)(2) because Mr. Greene is seeking re view of the Veterans Court’s factual determinations. We agree. In the absence of a constitutional issue, th is court lacks jurisdiction to review the Veterans Court’s factual determinations. See 38 U.S.C. § 7292(d)(2); Livingston v. Derwinski , 959 F.2d 224, 226 (Fed. Cir. 1992) (holding that th is court lacks jurisdiction if the claimant is not challenging the validity or interpretation of a statute or regulation, or the Board’s interpretation of a constitutional issue). Here, Mr. Greene concedes that he

2009-7045 32009-7045 4 is arguing neither a constitutional issue nor the Veterans Court’s interpretation of a statute or regulation. Inst ead, he argues that the Veterans Court erroneously concluded that his hearing loss was due to his surgery, and that the opinion of the examiner who had the SMRs was based on an erroneous understan ding of Mr. Greene’s employment subsequent to his military serv ice. Mr. Greene further argues that the other examiner’s opinion should have been given more weight. T hese arguments invite us to review the factual determinations upon which the Veterans Court relied. Therefore, we lack jurisdiction over this appeal. Accordingly, this appeal is dism issed for lack of jurisdiction. No costs.