N OTE : This disposition is nonprecedential. 

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

______________________ ARMANDO MONTELONGO, Claimant

- Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2016

- 1130

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 14

- 2946, Judge Robert N. Davis.

______________________

Decided : February 11, 2016

______________________

A RMANDO M ONTELONGO , San Antonio, TX, pro se.

M EEN G EU O H , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC for respondent

- appellee

. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., E LIZABETH M. H OSFORD ; B RIAN D. G RIFFIN , J ONATHAN K RISCH , Office of General Counsel, United States D epartment of Veterans Affairs, Washington, DC.

______________________MONTELONGO v. MCDONALD 2

Before M OORE , T ARANTO , and S TOLL , Circuit Judges.

P ER C URIAM

. Armando Montelongo appeals from a decision by the Court of Appeals for Veterans Claims (“Veterans Court”) that affirmed a decision by the Board of Veterans’ Appeals (“Board”) denying disability benefits for dizziness and vertigo seconda ry to service

- connected hearing loss and tinnitus. Because we lack jurisdiction over the issues Mr. Montelongo raises on appeal , we dismiss

. B ACKGROUND Mr. Montelongo served on active duty in the United States Army from March 1954 to December 1958 durin g the Korean Conflict Era and Peacetime

. In February 2010, Mr. Montelongo filed a claim for , inter alia, service

connected hearing loss and tinnitus . In 2014, the D epartment of Veterans Affairs (“VA”) awarded Mr. Mont elongo service connection for tinnitu s with a 10% disability rating effective as of the date of his claim. Mr. Montelo ngo appealed to the Board, arguing that he was also ent itled to service connection for a disability manifested by dizziness and vertigo, includ ing as secondary to his se rvice

- connected hearing loss and tinnitus.
The Board denied Mr. Montelongo’s claim. It found, as a matter of fact, that Mr. Montelongo did not exhibit dizziness or vertigo during his service or within one year of his separation from service. It further found that Mr. Montelongo’s dizziness or vertigo was not causally related
to an y injury he received during his active service or to his service

- connected disabilities. In making these fin dings, the Board recognized that , through no fault of Mr. Montelongo , the pertinent service treatment records were not available for review . In such situations, the Board explained that the VA ha s a heightened obligation to explain its findings and conclusions and to carefully consider the “benefit -of- the

- doubt rule.” Resp’t’s App

. 17.MONTELONGO v. MCDONALD 3

The Board considered a number of Mr. Montelongo’s medical records, including private records from 2011 and 2012, and VA medical records from 2012 and 2014. It found that the private medical record concerning the

cau se of Mr. Montelongo’s dizziness conflicted with the VA medical record addressing causation

, and that , of these two records, the VA medical record was more prob ative . It found the private record did not articulate a rational e for linking Mr. Montelongo’s dizziness to his service

- connected injuries and was based on factual inaccuracies whereas the VA medical record provided a detailed rationale as to why Mr. Montelongo’s dizziness was at least as likely to be caused by non

- service -related injuries as servic e- connected injuries

. It noted that, while the VA examiner could not identify the cause of Mr. Montelongo’s dizziness without resort to speculation, none of the likely causes that the VA examiner did identify were related to Mr. Montelongo’s service or hi s service

connected disabilities.

The Board also found that Mr. Montelongo was neur ologically normal according to his separation examination report and that, according to the most credible evidence of record, Mr. Montelongo himself dated the onset of h is dizziness to about 2001, around 43 years after his separ ation from service. The Board considered whether service connection could be granted on a presumptive basis for a chronic disability. It determined that service connection could not be granted on this ground because there was no medical evidence of dizziness or vertigo occurring during Mr. Montelongo’s service or within one year of his separ ation from service and because the evidence did not sufficiently establish continuity of his dizziness sympt oms since his service

. T he Board thus f ound that the prepo nderance of the evidence was against finding a link between Mr. Montelongo’s dizziness or vertigo and his service or service

- connected injuries. Because the Board found the preponderance of the evidence was againstMONTELONGO v. MCDONALD 4

Mr. Montelongo’s claim, it reasoned that the benefit -ofthe

- doubt rule did not apply.
On appeal, the Veterans Court affirmed. It dete rmined that the Board did not clearly err in relying on the VA medical re cord or in assessing the relative credibility and weight that it gave to each medical record. It simila rly found that the Board did not err by not applying the benefit-of- the

- doubt rule because this rule only applies when the evidence is equally balanced and the prepo nderance of the evidence weighed against Mr. Montelongo’s claim

. Mr. Montelongo timely appeals.

D ISCUSSION

Our jurisdiction over appeals from the Veterans Court is limited by statute. While we have jurisdiction to review and decide any chall enge to the validity of any statute or regulation or interpretation thereof and over relevant questions of law, we may not review challenges to factual determinations or to the application of a law or regulation to the facts of a particular case unless an appeal presents a constitutional issue

. 38 U.S.C. § 7292 (c), (d)(1), (d)(2).

Mr. M ontelongo argues that the Veterans Court wrongly af firmed the Board’s decision denying his claim for dizziness and vertigo disability benefits as secondary to his service

- connected tinnitus. He argues that the Board failed to consider whether the medical records it relied upon were adequate , and that the Board’s decision contradicted the VA’s 2014 ratings decision granting service connection for tinni tus. Specifically, he argues that the Board erred in finding the private medical record of less probative weight than the VA medical record because the VA relied on the private medical record when it granted service connection for tinnitus in the 2014 ratings decision.

These c hallenges are either questions of fact or go to the appropriate weight given to the evidence

. Whether aMONTELONGO v. MCDONALD 5

medical opinion is adequate is a question of fact, outside the scope of our jurisdiction. Prinkey v. Shinseki , 735 F.3d 1375, 1383 (Fed. Cir. 2013). Similarly, we do not have jurisdiction to review the relative weight assigned to various portions of Mr. Montelongo’s medical history. See Maxson v. Gober , 230 F.3d 1330, 1333 (Fed. Cir. 2000).

C ONCLUSION For the foregoing reasons, the appeal is dismisse d for lack of jurisdiction.

DISMISSED

C OSTS

No costs.