Separation of Claims

Separation of Claims

Some veterans who have been exposed to combat or military sexual trauma may develop an acquired psychiatric disorder. Many veterans, after filing a claim for post traumatic stress disorder (PTSD), end up diagnosed with another acquired psychiatric disorder, such as anxiety, depression, or even a schizoid disorder, based on symptoms similar to PTSD. This will lead to them to file separate claim.

Clemons v. Shinseki

This was the case in Clemons v. Shinseki, 23 Vet. App. 1 (2009). A veteran who filed a claim for PTSD was later diagnosed with an anxiety disorder and a schizoid disorder during the adjudication of his claim for PTSD. He submitted evidence of his diagnosis for anxiety disorder and schizoid disorder because they were based on the same symptoms for which he originally filed his claim for PTSD.

The Board of Veterans’ Appeals (Board) did not consider this new evidence of diagnosis, rejecting it as a separate claim and not to be considered with the claim for PTSD. Id. at 4. In overturning the Board, the Court of Appeals for Veterans Claims (Court) disagreed.

The Clemons Court stated:

Although the appellant’s claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.

Id. at 5.

The Court further stated:

For purposes of the claim and its adjudication, it matters little that the appellant believes his symptoms should be diagnosed as PTSD if the medical evidence establishes that his symptoms are actually something different. And, the fact that the appellant may be wrong about the nature of his condition does not relieve the Secretary of his duty to properly adjudicate the claim.

Id. at 6.

As a matter of public policy, the Court noted if veteran was forced to file a separate claim for the same symptoms, he would have to accept a later effective date because he did not guess right on the initial claim. It would be inequitable to expect veterans to properly claim a condition for which they had not been diagnosed or for which they had not been properly diagnosed. See Clemons, 23 Vet. App. at 5; see also Ingram v. Nicholson, 21 Vet. App. 232, 256 (2007) (As a self-represented layperson at the time his claim was filed, the appellant had neither the legal or medical knowledge to narrow the universe of his claim or his current condition to PTSD.)

Another matter of public policy is when an individual brings a claim that is finally adjudicated and is later diagnosed with a different condition based on the same symptoms or facts. “[W]hen a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.” 38 U.S.C. § 7104(b).

If we were to apply this to Clemons, appellant would be denied PTSD if the Court did not consider schizoid disorder and anxiety disorder as evidence for his PTSD claim. Moreover, he would be unable to bring a later claim for schizoid disorder or anxiety disorder because these claims are based “upon the same factual basis.” 38 U.S.C. § 7104(b).

Fortunately, the U.S. Court of Appeals for the Federal Circuit in Boggs v. Peakeclarified what veterans can do in this situation. 520 F.3d 1330, 1335 (Fed. Cir. 2008). Boggs indicates if there is a final decision denying a claim based on a specific diagnosis, and subsequently a new, different diagnosis is provided for VA’s consideration, the second diagnosis must be considered factually distinct from the first and must be considered as a separate claim when filed.

Therefore, Clemons tells us if we have a separate diagnosis that relates to a claim that has not yet been adjudicated, VA must consider the evidence within the associated claim. Boggs tells us if the associated claim has already been finally decided before a separate diagnosis is provided, veterans may file a claim on the basis of the second diagnosis, even though it may be based on the same facts previously adjudicated, despite what 38 U.S.C. § 7104(b) states.

If you or someone you knows is having trouble with the VA or their claim, contact Berry Law’s team of skillful attorneys today at (888) 883-2483 to schedule a free consultation.

Berry Law

The attorneys at Berry Law are dedicated to helping injured Veterans. With extensive experience working with VA disability claims, Berry Law can help you with your disability appeals.

This material is for informational purposes only. It does not create an attorney-client relationship between the Firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this blog are not a substitute for legal counsel.

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