United States Federal Circuit

A decision denying a veteran's 2002 claim for service connection for hearing loss in one ear is reversed and remanded for further proceedings where the Court of Appeals for Veterans Claims applied the wrong legal standard in determining that a 2002 claim was the same as his 1955 claim that had already been denied. The "factual basis" of a claim for purposes of 38 U.S.C. section 7104(b) is the veteran's disease or injury rather than the veteran's symptoms of the disease or injury. A properly diagnosed disease or injury cannot be considered the same factual basis as distinctly diagnosed disease or injury.

Appellate Information

• Decided 03/26/2008
• Published 03/26/2008

Judges

• GAJARSA, Circuit Judge., Before GAJARSA and DYK, Circuit Judges, and MORAN, Senior District Judge.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• Richard A. Kaplan, Sidley Austin LLP, of Washington, DC, argued for claimant-appellant.   Of counsel on the brief were Barton F. Stichman and Louis J. George, National Veterans Legal Services Program, of Washington, DC.


• For Appellees:
  
• Michael N. O'Connell, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee.   With him on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Assistant Director.   Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, of Washington, DC.