Joe L. Monzingo v. SLOAN D. GIBSON, Acting Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOE L. MONZINGO,
Claimant-Appellant,
v.
SLOAN D. GIBSON,
Acting Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7061
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-922, Chief Judge Bruce E.
Kasold.
______________________
Decided: June 13, 2014
______________________
D IANE B. K ADLEC, Law Office of Diane B. Kadlec, of
Valley Steam, New York, argued for claimant-appellant.
D OMENIQUE G. K IRCHNER , Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent-appellee. On the brief were S TUART F. D ELERY,
Assistant Attorney General, J EANNE E. D AVIDSON, Direc-
tor, and SCOTT D. AUSTIN, Assistant Director. Of counsel

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MONZINGO v. GIBSON 2
on the brief were D AVID J. BARRANS , Deputy Assistant
General Counsel, and RACHAEL T. BRANT , Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________
Before P ROST ,∗ Chief Judge, L OURIE and L INN, Circuit
Judges.
L OURIE, Circuit Judge.
Joe L. Monzingo (“Monzingo”) appeals from the deci-
sion of the United States Court of Appeals for Veterans
Claims (“the Veterans Court”) affirming the decision of
the Board of Veterans’ Appeals (“the Board”) denying
Monzingo’s claim for benefits after finding that he was not
entitled to service connection for bilateral hearing loss.
See Monzingo v. Shinseki, 26 Vet. App. 97 (2012). The
Veterans Court held that the Board did not err in (1) not
addressing evidence submitted by Monzingo because it
was not constructively before the Board; (2) not taking
judicial notice of the findings indicated by that evidence;
and (3) finding a U.S. Department of Veterans Affairs
(“VA”) medical opinion adequate and relying on that
document in denying Monzingo’s claim. Id. at 102–08.
Although Monzingo frames the issues on appeal as
whether the Veterans Court erred in the interpretation of
the law of constructive notice and the interpretation of its
own rules, in effect he disagrees with the Veterans Court’s
application of the law to the facts of his case. Accordingly,
we dismiss for lack of jurisdiction.
BACKGROUND
Monzingo served in the Army from October 1966 to
October 1968. His induction examination indicated that
∗ Sharon Prost assumed the position of Chief Judge
on May 31, 2014.

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MONZINGO v. GIBSON 3
he suffered from noise-notch hearing loss in his right ear.
Id. at 99. During his service, Monzingo was exposed to
noise from weapons fire and jet engines, which he claimed
caused tinnitus. His separation examination in August
1968 indicated that the hearing in his right ear had
improved slightly; the hearing in his left ear was normal
and unchanged. Id.
Monzingo filed a claim for disability compensation for
tinnitus in his right ear, which the VA Regional Office
(“RO”) granted in June 1984 at a 10% rating (the maxi-
mum available), and for bilateral hearing loss, which the
RO denied. Joint Appendix (“J.A.”) 60; Monzingo, 26 Vet.
App. at 99. That decision was not appealed and became
final. Id.
In September 2000, a VA evaluation revealed that
Monzingo suffered from bilateral sensorineural hearing
loss secondary to noise exposure while in the military.
See In re Monzingo, No. 08-19 467, slip op. at 7 (B.V.A.
Feb. 25, 2010). In June 2007, Monzingo filed a claim
seeking a higher rating than the 10% rating, which was
denied. Monzingo, 26 Vet. App. at 99. In 2008, as a
result of his claim for a higher rating, Monzingo received
a VA audiological examination, which diagnosed him with
bilateral hearing loss but found that his left ear hearing
loss was not “caused by or a result of acoustic trauma in
service,” and his right ear hearing loss was not “aggravat-
ed by acoustic trauma in service.” Id. Monzingo filed a
notice of disagreement, which was denied in May 2008.
Monzingo appealed to the Board, which found that the
2000 VA evaluation satisfied the requirements for new
and material evidence sufficient to reopen his original
1984 claim. However, the Board denied Monzingo service
connection because his claim lacked competent evidence
to indicate a nexus between the disability and noise
exposure during his service. Specifically, the Board noted
that (1) the 2000 VA evaluation did not discuss Monzin-

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MONZINGO v. GIBSON 4
go’s pre-existing hearing loss in his right ear and did not
address whether it was aggravated by his service; (2) the
2008 VA examination found that Monzingo’s left ear
hearing loss was not aggravated by acoustic trauma in
service; and (3) Monzingo’s hearing improved between his
induction and separation examinations. Id. at 100.
Monzingo appealed to the Veterans Court.
On appeal, Monzingo argued that (1) the Board pro-
vided inadequate reasons for denying the appeal and that
two reports published with some VA involvement, viz., a
2006 report entitled Noise and Military Service and a
1982 report entitled Tinnitus: Facts, Theories, and Treat-
ments (“Tinnitus”), should have been deemed construc-
tively part of the record; (2) the Board relied on an
inadequate medical report; and (3) the Board erred in
finding that his hearing had improved during his service.
In August 2011, Monzingo filed a motion to append a
pre-publication version of Noise and Military Service to
his reply brief. On October 31, 2012, Monzingo also
moved the court to take judicial notice of a 1995 memo-
randum from the Undersecretary of the Veterans Benefits
Administration (the “Kizer Memo”). Monzingo was sub-
sequently informed by the clerk’s office at the Veterans
Court that his October 2012 motion was filed without a
signature. Because of Hurricane Sandy, however, counsel
for Monzingo was without electrical power until Novem-
ber 3. Monzingo did not file a corrected version of the
October 2012 motion, and both it and the August 2011
motion were denied without comment on November 7.
J.A. 68, 96.
Later that month, a three-judge panel1 of the Veter-
ans Court affirmed the Board’s denial of service connec-
1 The three-judge panel was convened to clarify the
law on constructive possession. Monzingo, 26 Vet. App. at

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MONZINGO v. GIBSON 5
tion for bilateral sensorineural hearing loss. Monzingo,
26 Vet. App. at 99. The Veterans Court reviewed the law
of constructive possession, concluding that the general
rule that constructive possession attaches in circumstanc-
es in which “documents proffered by the appellant are
within the Secretary’s control and could reasonably be
expected to be part of the record before the Secretary and
Board” had been refined by two later cases. Id. at 101–02.
The Veterans Court noted in Bowey v. West, 11 Vet. App.
106 (1998), that documents would not be constructively
possessed if “the connection [of those documents] to the
appellant’s case [was] too tenuous.” Monzingo, 26 Vet.
App. at 102 (quoting Bowey, 11 Vet. App. at 109). Addi-
tionally, the Veterans Court held in Goodwin v. West, 11.
Vet. App. 494 (1998), that a document generated by VA
would not be considered by the board “unless the docu-
ment has a direct relationship to the claimant’s appeal,”
reasoning that to hold otherwise would “place[] an impos-
sible burden on the Board . . . .” Monzingo, 26 Vet. App.
at 102.
Applying that law to the facts of Monzingo’s case, the
Veterans Court found that the proffered reports did not
meet the test for constructive possession because the
relationship between the reports and Monzingo was too
tenuous. Id. at 102–03. Noise and Military Service was
deemed not constructively before the Board because the
report contained findings that were “those of the author(s)
and [did] not necessarily reflect the view of the organiza-
tions or agencies that provided support for the project,”
99 (“Underlying Mr. Monzingo’s first argument is a con-
tention that two reports published with partial VA in-
volvement should be deemed constructively part of the
record before the Board, a question that prompted the
convening of a panel to decide this appeal.”) (citations
removed).

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MONZINGO v. GIBSON 6
and was not specific to Monzingo and was not related to
the same disability he was claiming. Id. Tinnitus was
deemed not constructively possessed by the Board be-
cause the report was drafted by a committee that had only
one VA employee, and bore no relationship to Monzingo’s
claim other than a general discussion of tinnitus and
hearing loss. Id. at 103.
After finding that those reports were not constructive-
ly possessed by the Board, the Veterans Court took judi-
cial notice of some aspects of Noise and Military Service,
including that the VA had received a copy of the docu-
ment, but would not take notice of the findings and con-
clusions of the report. Id. at 103–04. The Veterans Court
also found that the 2008 VA medical examination, upon
which the Board based its decision denying Monzingo
service connection, was adequate and that the Board did
not err in indicating that Monzingo’s hearing had im-
proved during his service. Id. at 105–08.
Monzingo timely appealed to this court seeking to in-
voke our jurisdiction under 38 U.S.C. § 7292.
D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Under 38 U.S.C. § 7292(a), a
party may obtain review “with respect to the validity of a
decision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the Court in making the decision.”
Under § 7292(d)(2), however, absent a constitutional
issue, 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.”
Monzingo’s main argument is that the Veterans Court
erred in denying his motions to append the pre-
publication version of Noise and Military Service and to

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MONZINGO v. GIBSON 7
take judicial notice of the Kizer Memo because the rules of
the Veterans Court are inconsistent with the Federal
Rules of Civil Procedure (“FRCP”) and the Federal Rules
of Appellate Procedure (“FRAP”), which Monzingo alleges
violate both the Rules Enabling Act and his due process
rights. Monzingo argues that the Veterans Court further
erred by not providing more time to file a corrected mo-
tion to take judicial notice of the Kizer Memo in light of
the challenges presented to Monzingo’s counsel during
Hurricane Sandy. Monzingo also contends that the
Veterans Court should have taken judicial notice of more
aspects of Noise and Military Service and Tinnitus be-
cause the VA participated in the research and publication
of those reports, thus allegedly giving it knowledge of the
contents of those reports. Finally, Monzingo argues that
this court should have sua sponte issued an order extend-
ing time for all practitioners at courts under our jurisdic-
tion that were affected by Hurricane Sandy.
The Secretary responds that the review of the Veter-
ans Court’s denial of Monzingo’s motions involves an
application of the Veterans Court’s rules to the facts of
Monzingo’s case, beyond the scope of our jurisdiction.
Additionally, the Secretary argues that we likewise do not
possess jurisdiction to review the Veterans Court’s denial
of more extensive judicial notice for the contents of Noise
and Military Service and Tinnitus because doing so would
involve an application of law to the facts of Monzingo’s
case. Finally, the Secretary asserts that this court does
not possess jurisdiction to determine whether we should
have issued an order extending filing times due to Hurri-
cane Sandy.
We agree with the Secretary that we lack jurisdiction
to review the Veterans Court’s denial of Monzingo’s
motions because doing so requires reviewing the court’s
application of law to the facts of Monzingo’s case, specifi-
cally, application of the court’s rules of procedure. Moreo-
ver, an issue that would otherwise be within our

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MONZINGO v. GIBSON 8
jurisdiction must be one upon which the Veterans Court
relied in making its decision. Maggitt v. West, 202 F.3d
1370, 1374 (Fed. Cir. 2000). Here, the Veterans Court’s
decision denying Monzingo service connection for bilateral
hearing loss did not rely on its denial of Monzingo’s mo-
tions.
Monzingo’s argument relating to the Rules Enabling
Act is also unavailing. The Rules Enabling Act grants the
Supreme Court power to “prescribe general rules of prac-
tice and procedure and rules of evidence for cases in the
United States district courts . . . and courts of appeals.”
28 U.S.C. § 2072 (emphases added). The Veterans Court
is neither a federal district court nor a federal court of
appeals and it is granted the ability to prescribe its own
rules of practice and procedure. See 38 U.S.C. § 7264.
The Veterans Court’s rules are thus not covered by the
Rules Enabling Act. Cf. Checo v. Shinseki, No. 2013-7059,
2014 WL 1613885, at *3 (Fed. Cir. Apr. 23, 2014) (“[T]he
Federal Rules of Civil Procedure do not apply to the
appellate Veterans Court.”).
Monzingo’s contention that the Veterans Court should
have taken judicial notice of more aspects of Noise and
Military Service and Tinnitus similarly challenges the
Veterans Court’s application of the law to the facts of the
case. In arguing that the VA had knowledge of the con-
tents of those reports because the agency participated in
the research and publication of the documents, Monzingo
is essentially challenging the Veterans Court’s application
of the law of constructive possession to the facts of his
case. The Veterans Court found that the VA did not have
constructive possession of those documents, in part,
because the agency had a limited involvement in the
research and publication of those reports. In arguing on
appeal that the VA participated in the publication and
research of the documents, Monzingo is simply reiterating
the arguments that were rejected when the Veterans

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MONZINGO v. GIBSON 9
Court found those documents not constructively pos-
sessed, review of which is outside of our jurisdiction.
In addition to having determined that we do not pos-
sess jurisdiction to review the denial of Monzingo’s mo-
tions, we do not have authority to sua sponte extend the
filing times for litigants in courts whose decisions we
review. Finally, we note that Monzingo’s constitutional
argument does not provide an adequate explanation of
how the application of the Veterans Court’s rules to
Monzingo’s case violated his due process rights. Without
an explanation providing an adequate basis for his claim,
it is a constitutional claim in name only and outside of our
jurisdiction relating only to application of law to fact.
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (find-
ing invocation of a constitutional label does not establish
jurisdiction).
We have considered Monzingo’s remaining arguments
and conclude that they are without merit and do not
support jurisdiction. For the foregoing reasons, the
appeal is dismissed for lack of jurisdiction.
DISMISSED

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