## Facts

- Clinton C. Boggs, Jr., a U.S. Army veteran, served on active duty from December 1950 to March 1954, including artillery-related combat service in Korea.
- In 1955, he sought VA service connection for a left-ear condition; a VA examiner diagnosed a chronic left-ear infection (originating in 1941) and conductive hearing loss.
- The VA Regional Office denied service connection, finding the conductive hearing loss was caused by a pre-service infection and was not shown to be caused or aggravated by service.
- In 2002, Boggs filed another application for left-ear hearing loss; by then he had been diagnosed with sensorineural hearing loss, a different type of hearing loss commonly associated with acoustic trauma.
- The Board of Veterans’ Appeals treated the 2002 application as the same claim as the 1955 claim and denied it for lack of “new and material” evidence required to reopen under 38 U.S.C. § 5108.
- The Court of Appeals for Veterans Claims affirmed, reasoning the two claims were the same because they involved the same symptomatology (left-ear hearing loss).
- Boggs appealed to the U.S. Court of Appeals for the Federal Circuit.

## Issues

1. Whether, for purposes of claim finality and reopening under 38 U.S.C. §§ 7104(b) and 5108, the “factual basis” of a VA claim is defined by the veteran’s symptoms or by the diagnosed disease or injury.
2. Whether a later service-connection claim based on sensorineural hearing loss is the same claim as an earlier, finally denied claim based on conductive hearing loss.

## Decision

- The Federal Circuit reversed and remanded.
- The court held that the “factual basis” of a claim under § 7104(b) is the veteran’s disease or injury, not the symptoms.
- Because sensorineural hearing loss and conductive hearing loss are distinct diagnoses, the 2002 application was a new claim rather than a request to reopen the 1955 denial.
- The Veterans Court erred by using a symptom-based test and by requiring “new and material” evidence as a condition of adjudicating the 2002 claim.

## Legal Principles

- For purposes of 38 U.S.C. § 7104(b), the identity of a VA claim turns on the diagnosed disease or injury forming the claim’s factual basis, not on overlapping symptomatology.
- A properly diagnosed disease or injury cannot share the same factual basis as a distinctly diagnosed disease or injury, even if both present similar symptoms.
- A new theory of causation for the same diagnosed condition generally does not create a new claim, but a claim based on a different diagnosed disease or injury does.

## Conclusion

The Federal Circuit held that finality and reopening rules do not bar a later service-connection claim when it rests on a distinct diagnosis from the one previously denied; similar symptoms alone do not make the claims the same, and the later claim must be treated as a new merits claim.


Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008)