Pasco K. Altovilla v. Robert Wilkie, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PASCO K. ALTOVILLA,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1915
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-2138, Judge Joseph L. Falvey,
Jr.
______________________
Decided: September 6, 2019
______________________
P ASCO K. ALTOVILLA, Clarksburg, WV, pro se.
T ANYA K OENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
J OSEPH H. HUNT , CLAUDIA BURKE, R OBERT E DWARD
K IRSCHMAN, J R.; CHRISTINA L YNN G REGG, BRIAN D.
G RIFFIN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.

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ALTOVILLA v. WILKIE 2
______________________
Before L OURIE, M OORE, and STOLL , Circuit Judges.
P ER CURIAM .
Pasco K. Altovilla appeals from the final decision of the
Court of Appeals for Veterans Claims (“the Veterans
Court”) affirming the decision of the Board of Veterans’ Ap-
peals (“the Board”), which denied Altovilla entitlement to a
disability greater than 10 percent for bilateral hearing loss.
See Altovilla v. Wilkie, No. 18-2138, 2019 WL 439006, at *2
(Vet. App. Feb. 5, 2019). For the reasons that follow, we
dismiss the appeal.
BACKGROUND
Altovilla served on active duty in the Army from 1962
to 1965. Id. at *1. In November 2007, he was granted ser-
vice connection for his hearing loss in his left ear at a 10%
disability rating. Id. In June 2015, he sought a higher dis-
ability rating for his left ear. Id. In September 2015, Alto-
villa received a VA audiological examination resulting in
pure tone averages of 50 for the right ear and 105+ for the
left ear, and speech discrimination scores of 96% in the
right ear and “could not test” in the left ear. Id. In Decem-
ber 2015, the Department of Veterans Affairs (“VA”) Re-
gional Office in Huntington, West Virginia notified
Altovilla that it had made a decision that the disability rat-
ing for his left ear should remain at 10% and that the right
ear would be evaluated with the left ear as a paired organ.
It awarded Altovilla a disability rating of 10% for his bilat-
eral hearing loss. Altovilla filed a Notice of Disagreement,
and the VA responded by granting service connection for
his right ear and maintaining a disability rating of 10% for
his bilateral hearing loss. Id.
Altovilla appealed to the Board. In a March 2018 deci-
sion, the Board denied entitlement to a disability rating
greater than 10% for bilateral hearing loss. See In re

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ALTOVILLA v. WILKIE 4
clearly err in assigning a disability rating of 10%. Altovilla,
2019 WL 439006, at *2. Altovilla timely appealed to this
court.
D ISCUSSION
The scope of our review in an appeal from the Veterans
Court is limited. We may review the validity of a decision
with respect to a rule of law or interpretation of a statute
or regulation that was relied upon by the Veterans Court
in making its decision. 38 U.S.C. § 7292(a). Except with
respect to constitutional issues, this Court “may not review
(A) a challenge to a factual determination, or (B) a chal-
lenge to a law or regulation as applied to the facts of a par-
ticular case.” Id. § 7292(d)(2).
Altovilla argues that he should have been awarded at
least a 20% disability rating. According to Altovilla, he was
awarded a 10% disability rating in his left ear and then a
10% disability rating in his right ear for a total 10% disa-
bility rating, which “does not add up” and “makes no
sense.” Appellant’s Br. 1. He additionally contends that
conversations he had with the audiological examiner
should have been considered. Altovilla also submitted an
updated audiological examination from April 2018, which
he argues shows that the condition is his right ear wors-
ened.
The government responds that Altovilla’s arguments
do not challenge the interpretation of the regulations, but
rather, “simply disagree[] with the results of his assigned
disability rating.” Appellee’s Br. 8. Accordingly, the gov-
ernment argues that this court lacks jurisdiction over this
appeal. To the extent that Altovilla challenges the rating
schedule itself, the government’s position is that the rating
schedule is not subject to review. Additionally, the govern-
ment argues that whether Altovilla’s conversations with an
audiological examiner should have been considered in the
ratings decision, is also a question of fact outside of this
court’s jurisdiction. Finally, the results of an April 2018

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ALTOVILLA v. WILKIE 5
examination that Altovilla submitted to demonstrate the
worsening of his condition constitutes “a claim for increase
that is separate and distinct from the initial claim for ser-
vice connection that underlies this appeal.” Id. at 10. The
government contends that a claim for increase must be
filed first with the VA.
We agree with the government that we lack jurisdic-
tion to review Altovilla’s appeal. Altovilla challenges the
results of his assigned disability rating, but this is a factual
determination that we lack jurisdiction to review. See Bas-
tien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The
evaluation and weighing of evidence and the drawing of ap-
propriate inferences from it are factual determinations
committed to the discretion of the fact-finder. We lack ju-
risdiction to review these determinations.”). We also lack
jurisdiction to review substantive challenges to the ratings
schedules, which are within the discretion of the Secretary.
See 38 U.S.C. § 7252(b); Wingard v. McDonald, 779 F.3d
1354, 1359 (Fed. Cir. 2015) (holding that this court was
precluded from substantive review of ratings schedules
based on § 7252(b)’s bar on Veterans Court review). The
additional information Altovilla provided regarding a con-
versation he had with the audiological examiner, and
whether that information should have been considered in
his rating decision, is also a fact question outside of our ju-
risdiction. See Waltzer v. Nicholson, 447 F.3d 1378, 1380
(Fed. Cir. 2006). Finally, the April 2018 examination,
which Altovilla contends demonstrates his worsening con-
dition, is dated after the Board’s decision and thus was not
considered by the Board or the Veterans Court. This court
is without jurisdiction to consider it in the first instance.
See Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998).
CONCLUSION
We have considered the remaining arguments but find
them unpersuasive. For the foregoing reasons, we dismiss
the appeal for lack of jurisdiction.

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ALTOVILLA v. WILKIE 6
DISMISSED
COSTS
No costs.

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