                      NOTE: This disposition is nonprecedential.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 Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for 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 Court of Appeals for Veterans Claims

Judge William A. Moorman
                           NOTE: This disposition is nonprecedential.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.




Appeal from the United States Court of Appeals for Veterans 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 Court of Appeals for

Veterans Claims (“Veterans Court”), Greene v. Peake, No. 07-0821 (Vet. App. Sept. 30,

2008), affirming the denial of service connection 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 with 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 office (“RO”) of the Department of Veterans Affairs (“VA”)

denied the claim, finding that Mr. Greene failed to establish a connection between his

service and his hearing loss.      The RO based its determination on Mr. Greene’s

statement to a physician that the hearing loss began suddenly after the surgery.

         Mr. Greene appealed the RO’s decision to the Board of Veterans’ Appeals

(“Board”). The Board found most persuasive the medical evidence showing that his

hearing loss was unrelated to his military service. Although one examiner opined that

Mr. Greene’s hearing loss was service-connected, she admitted that she did not have

access to Mr. Greene’s service medical records (“SMRs”), and thus could not provide a

more definitive opinion. In contrast, another examiner, who had access to Mr. Greene’s

SMRs, concluded that his hearing loss was unrelated to his military service.

Additionally, Mr. Greene testified before the Board that he was exposed to loud noise

during service.    The Board found persuasive the opinion of the 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 Court found that the Board had properly




2009-7045                                   2
considered all evidence of record, and that the Board’s decision 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 affirm a Veterans Court decision unless it is

“(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of

statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D)

without observance of procedure required by law.” Id. § 7292(d)(1). Further, absent a

constitutional issue, we may not review challenges to factual determinations or

challenges to the application of a law or regulation 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 jurisdiction over this appeal under 38 U.S.C.

§ 7292(d)(2) because Mr. Greene is seeking review of the Veterans Court’s factual

determinations. We agree.

       In the absence of a constitutional issue, this 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 this 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                                     3
is arguing neither a constitutional issue nor the Veterans Court’s interpretation of a

statute or regulation. Instead, 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 understanding of Mr. Greene’s employment

subsequent to his military service. Mr. Greene further argues that the other examiner’s

opinion should have been given more weight. These 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 dismissed for lack of jurisdiction.

       No costs.




2009-7045                                     4
