NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL DOLLISON,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-2322
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4691, Senior Judge Alan G.
Lance, Sr.
______________________
Decided: September 25, 2018
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
JOSHUA E. KURLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by ROBERT EDWARD KIRSCHMAN, JR., LOREN
MISHA PREHEIM, CHAD A. READLER; JONATHAN KRISCH, Y.
2 DOLLISON v. WILKIE
KEN LEE, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
Before O’MALLEY, CLEVENGER, and STOLL, Circuit Judges.
O’MALLEY, Circuit Judge.
Veteran Michael Dollison appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”), which affirmed a decision of the Board
of Veterans’ Appeals (“Board”) denying Dollison entitle-
ment to service connection for post-traumatic stress
disorder (“PTSD”) but granting him entitlement to service
connection for major depressive disorder (“MDD”). Dolli-
son v. Shulkin, No. 15-4691,
2017 WL 1324250 (Vet. App.
Apr. 11, 2017). Dollison argues that the Veterans Court
erred in denying him entitlement for PTSD by failing to
apply the presumption articulated in Cohen v. Brown,
10
Vet. App. 128 (1997). Because the Department of Veter-
ans Affairs granted Dollison a rating for his entitlement
to service connection for MDD, and because Dollison fails
to demonstrate how entitlement to service connection for
PTSD rather than or in addition to MDD would result in a
better rating or otherwise greater benefits, we dismiss
this case for lack of standing.
BACKGROUND
Dollison is a veteran of the United States Army Na-
tional Guard with periods of active duty for training from
October 1981 to February 1982 and in August 1984 and
June 1986. In 2011, Dollison filed a claim for benefits
seeking entitlement to service connection for PTSD. In
this claim, he reported that he experienced stress and
panic during his training as an infantryman and when he
injured his right thumb during active service. The De-
partment of Veterans Affairs denied the claim in a Rating
Decision dated September 23, 2011. Dollison appealed.
While the appeal was pending, medical examiners provid-
DOLLISON v. WILKIE 3
ed varying assessments of Dollison’s psychiatric condition,
including assessments of PTSD, MDD, or both.
On September 1, 2015, the Board denied Dollison en-
titlement to service connection for PTSD but granted him
entitlement to service connection for MDD. In its deci-
sion, the Board credited a June 2015 report from an
examining psychologist, which explained that Dollison’s
“history, test results, and symptom presentation” were
more consistent with a diagnosis of MDD than of PTSD.
J.A. 37. Accordingly, the Department of Veterans Affairs
granted Dollison a rating of 50 percent. Suppl. J.A. 2.
Dollison appealed to the Veterans Court, which affirmed
the Board’s decision. Dollison now appeals to this court,
seeking entitlement to service connection for PTSD under
the Cohen presumption.
In response, the government argues that “Dollison
fails to demonstrate prejudice from the [B]oard character-
izing (and granting benefits for) his psychiatric condition
as MDD rather than PTSD” because “any re-
characterization of his condition or additional grant of
service connection for PTSD would result in no further
benefit to Mr. Dollison, who cannot be compensated twice
for the same symptomatology.” Appellee’s Br. at 15.
During oral argument, the court asked the parties wheth-
er the government’s position, if true, would deprive Dolli-
son of standing on appeal. Because the parties were
unable to provide definitive answers in response, the
court requested that the parties file supplemental letter
briefs addressing the following question: Whether there
exists a concrete and particularized injury in fact suffi-
cient to confer Article III standing in this case. Dollison
v. Wilkie, No. 17-2322, ECF No. 36, slip op. at 1–2 (Fed.
Cir. Mar. 29, 2018). The parties filed their supplemental
letter briefs on August 20, 2018. For the reasons stated
below, we find that Dollison has not met his burden of
demonstrating standing.
4 DOLLISON v. WILKIE
DISCUSSION
To establish Article III standing, the appellant “must
have (1) suffered an injury in fact, (2) that is fairly trace-
able to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial deci-
sion.” Spokeo, Inc. v. Robins,
136 S.Ct. 1540, 1547 (2016).
“To establish injury in fact, a[n appellant] must show that
he or she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual
or imminent, not conjectural or hypothetical.’”
Id. at 1548
(quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560
(1992)). The appellant bears the burden of demonstrating
standing. See id. at 1547.
Here, Dollison argues that he should have been diag-
nosed with PTSD under the Cohen presumption rather
than with MDD. The government contends that Dollison
has not demonstrated an injury in fact because he has
failed to show that a diagnosis of PTSD would result in a
better rating than a diagnosis of MDD, when ratings are
formulated based on the symptoms that the veteran
presents.
Indeed, 38 C.F.R § 4.130, which sets out the schedule
of ratings for mental disorders, is structured such that,
once a service-connected mental disorder is established, a
single formula based on symptoms is used to calculate the
rating, regardless of the diagnostic label. For example,
the General Rating Formula for Mental Disorders set out
in this regulation provides for a rating of 100 for veterans
experiencing “[t]otal occupational and social impairment,
due to such symptoms as: gross impairment in thought
processes or communication; persistent delusions or
hallucinations . . . .” § 4.130. In contrast, the same
formula provides for a rating of 0 if a “mental condition
has been formally diagnosed, but symptoms are not
severe enough either to interfere with occupational and
social functioning or to require continuous medication.”
DOLLISON v. WILKIE 5
Id. In other words, the government is correct that a
rating is determined not by the diagnostic label, but by
the symptoms that result from the service-connected
mental disorder. Accordingly, to demonstrate an injury in
fact in this case, Dollison must establish that he suffers
from symptoms of PTSD that are not also symptoms of
MDD or that a diagnosis of PTSD would result in some
other greater benefit to Dollison.
We find that Dollison has failed to meet this burden.
While it may be true, as Dollison contends, that the
“recognized array of symptoms for PTSD is greater and
more varied than for MDD,” Appellant’s Suppl. Br. at 4,
Dollison has not demonstrated that he suffers from symp-
toms of PTSD that are not also symptoms of MDD. This
is similar to the facts in our decision in Amberman v.
Shinseki,
570 F.3d 1377, 1381 (Fed. Cir. 2009), where we
“recognize[d] that bipolar affective disorder and PTSD
could have different symptoms and it could therefore be
improper in some circumstances for the [Department of
Veterans Affairs] to treat these separately diagnosed
conditions as producing only the same disability,” but
found it significant “that there were no manifestations of
one mental disorder that were not also manifestations of
the other.”
Id. Therefore, we found no error in treating
the separately diagnosed conditions as producing only the
same disability.
Id. Similarly, here, Dollison has not
demonstrated that he suffers from manifestations of
PTSD that are not also manifestations of MDD. There-
fore, Dollison has failed to establish anything more than a
hypothetical injury because he has not alleged facts
sufficient to demonstrate that a diagnosis of PTSD would
result in a better rating.
Nor has Dollison demonstrated that a diagnosis of
PTSD, rather than of MDD, would result in any other
greater benefit. Dollison contends that he suffers a con-
crete injury “because his MDD condition has not been
rated as permanent and total,” and that, therefore, “if at
6 DOLLISON v. WILKIE
any time during the next 14 years VA determines that his
condition [h]as materially improved under the ordinary
conditions of life, based on MDD alone,” then his total
rating can be reduced. Appellant’s Suppl. Br. at 7–8. But
Dollison fails to allege facts demonstrating that the same
would not also be true if he were diagnosed with
PTSD. Instead, Dollison merely states, without citation
in support, that “[i]t is far more likely that [his] MDD will
improve in the next 14 years before his current rating is
protected,” and that “[i]n contrast, it is far more likely
that his PTSD will remain severe and intractable, which
is the nature of this mental disease.” Appellant’s Suppl.
Br. at 9. Therefore, we conclude that Dollison’s unsub-
stantiated and hypothetical statements fail to demon-
strate a concrete and particularized injury in fact.
CONCLUSION
For the reasons stated above, we find that Dollison
has failed to meet his burden of demonstrating an injury
in fact. Therefore, we dismiss this case for lack of stand-
ing.
DISMISSED
COSTS
No costs.
