Single Judge Application, Boggs v. Peake, 520 F.3d, PTSD, Depression, Anxiety, Each Separate Diagnosis and Separate Claims

In Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit held that "the 'factual basis' of a claim for purposes of 38 U.S.C. § 7104(b) is the veteran's disease or injury rather than the symptoms of the veteran's disease or injury," that "a properly diagnosed disease or injury cannot be considered the same factual basis as [another] distinctly diagnosed disease or injury," and that "[i]t follows that because § 7104(b) distinguishes claims according to their factual bases, claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim." As a result, the appellant's claims for service connection for depression and anxiety are separate claims from his claim to reopen his denied claim for entitlement to service connection for PTSD, as his anxiety and depression are distinctly and properly diagnosed diseases. See id.; cf. Clemons v. Shinseki, 23 Vet.App.
1, 7-8 (2009).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3210
JOHN A. MATICH, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

LANCE, Judge: The appellant, John A. Matich, through counsel, appeals an August 11, 2009, Board of Veterans' Appeals (Board) decision that denied a reopening of his claim for entitlement to service connection for post-traumatic stress disorder (PTSD). Record (R.) at 3. The appellant does not present any argument concerning the actual denial of his request to have his PTSD claim reopened. Accordingly, that claim is deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely; however, the Court does not have jurisdiction over the issues raised by the appellant pursuant to 38 U.S.C. §§ 7252(a) and 7266. Accordingly, for the reasons that follow, the Court will dismiss the appellant's appeal.

I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from January
1966 until December 1967. R. at 562. In May 1994, VA issued a rating decision that "denied reconsideration of service-connection for [a] nervous condition now claimed as post-traumatic stress disorder." R. at 842-43. At the time, VA denied service connection because the appellant did not have a PTSD diagnosis. R. at 848-51.
The appellant failed to submit a timely Notice of Disagreement (NOD) and the rating decision became final. R. at 767, 826-28. The appellant later attempted to reopen his PTSD claim; however, the Huntington, West Virginia, regional office (RO) denied a reopening because it found that the
appellant had not submitted new and material evidence. R. at 1146-48. The RO reasoned in part
that the medical evidence submitted by the appellant still did not contain a PTSD diagnosis. Id. The
appellant submitted an NOD; however, it appears that he never submitted a Substantive Appeal as
to that decision. R. at 541-44, 549.
In December 2005, the appellant once again attempted to reopen his claim for entitlement to PTSD. R. at 396. The record developed in the course of the appellant's attempt to reopen his PTSD claim included medical records showing a diagnosis of a depressive condition and a possible diagnosis of an anxiety disorder. R. at 71, 225, 230, 235, 242, 268, 357.
The Cleveland, Ohio, RO found that the appellant had still not submitted new and material evidence.
R. at 260-64. The RO noted that the evidence submitted by the appellant did not contain a PTSD
diagnosis. R. at 261. The appellant filed a timely NOD and Substantive Appeal. R. at 246, 175. In
the Board decision on appeal, the Board denied a reopening of the appellant's PTSD claim,
finding that the appellant had not submitted new and material evidence and that the record still
contained no evidence of a PTSD diagnosis. 11-12.

II. ANALYSIS
In his brief, the appellant does not challenge any of the Board's findings concerning his claim for entitlement to a reopening of his service-connection claim for PTSD. Appellant's Brief (Br.) at
1-16. Instead, the appellant argues that the Board erred by: (1) ignoring favorable evidence that
establishes that he suffers from companion diagnosed depression and anxiety; (2) failing to remand the companion depression and anxiety conditions for appropriate development and adjudication; and (3) failing to provide an adequate statement of reasons or bases for not addressing the aforementioned diagnoses. Appellant's Br. at 7-12. The Secretary counters that the Court does not have jurisdiction over the issues raised by the appellant. Secretary's Br. at 7-11. After reviewing the pleadings and record in this case, the Court agrees that the appellant raises issues over which it cannot exercise jurisdiction.
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In Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit held that "the 'factual basis' of a claim for purposes of 38 U.S.C. § 7104(b) is the veteran's disease or injury rather than the symptoms of the veteran's disease or injury," that "a properly diagnosed disease or injury cannot be considered the same factual basis as [another] distinctly diagnosed disease or injury," and that "[i]t follows that because § 7104(b) distinguishes claims according to their factual bases, claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim." As a result, the appellant's claims for service connection for depression and anxiety are separate claims from his claim to reopen his denied claim for entitlement to service connection for PTSD, as his anxiety and depression are distinctly and properly diagnosed diseases. See id.; cf. Clemons v. Shinseki, 23 Vet.App.
1, 7-8 (2009). As there is no final Board decision concerning these new claims, the Court lacks
jurisdiction to consider them. See 38 U.S.C. §§ 7252(a), 7266(a); Jarrell v. Nicholson, 20 Vet.
App. 326, 330-32 (2006) (en_banc).
To be clear, the Court is not holding that these new claims have never been raised. In fact,
these claims may be pending below based upon the submissions of the appellant. However, Boggs
is factually on point and controlling in this case. Supra. The prior final decisions considering the
appellant's mental condition as PTSD must be considered as a separate claim from any new
diagnoses. Id. Accordingly, the Court lacks jurisdiction to consider such claims until presented with a properly appealed Board decision on those claims.1 See Jarrell, 20 Vet.App. at 330-32 (2006).
In this regard, the Court notes that the question of when such claims were
first raised may be considered when, and if, it ever becomes contested and appealed.
21_Vet.App. 232, 254 (2007). See Ingram v. Nicholson,

1. The Court notes that it cannot assume from the silence in the current
Board decision that a new claim under the alternative diagnoses has not been adjudicated. It is entirely possible that such a claim has been recognized by VA and may have been adjudicated in a separate proceeding. See Fagre v. Peake, 22 Vet.App. 188, 191 n. 4 (2008) (noting the Secretary is free to “issu[e] separate Board decisions with regard to each, some, or all disabilities claimed by a
veteran”).

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III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record, the appellant's case is DISMISSED for lack of jurisdiction.
DATED: March 16, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
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