Polich v. Collins
CourtCourt of Appeals for the Federal Circuit
Date FiledOctober 29, 2026
Docket25-1299
StatusUnpublished
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Full Opinion
Case: 25-1299 Document: 46 Page: 1 Filed: 10/29/2026
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY ARMAND POLICH,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2025-1299
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-3069, Senior Judge William A.
Moorman.
______________________
Decided: October 29, 2026
______________________
KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
TANYA KOENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by WILLIAM JAMES GRIMALDI, PATRICIA M. MCCARTHY,
BRETT SHUMATE; CARLING KAY BENNETT, DEREK SCADDEN,
Case: 25-1299 Document: 46 Page: 2 Filed: 10/29/2026
2 POLICH v. COLLINS
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before CHEN, STOLL, and STARK, Circuit Judges.
CHEN, Circuit Judge.
Anthony Polich appeals a decision of the United States
Court of Appeals for Veterans Claims (Veterans Court).
Polich v. McDonough, 2024 WL 4002743 (Vet. App. Aug.
30, 2024) (Decision). The Veterans Court affirmed the de-
cision of the Board of Veterans’ Appeals (Board) denying an
increase in Mr. Polich’s disability rating for symptoms re-
lated to traumatic brain injury (TBI) and post-traumatic
stress disorder (PTSD). Here, Mr. Polich does not raise a
legal issue over which we have jurisdiction. We dismiss.
BACKGROUND
Mr. Polich served honorably on active duty in the
United States Army from 1967 to 1969. Decision, 2024 WL
4002743, at *1. He was medically retired due to injuries he
sustained in Vietnam. Id. In 1997, Mr. Polich sought ben-
efits for his PTSD symptoms. The Department of Veterans
Affairs (VA) awarded him service connection for PTSD with
a rating of 30%. Id. By 2002, his PTSD disability rating
increased to 50%. Id.
In 2010, Mr. Polich claimed service connection for re-
siduals of a TBI. Id. In 2013, VA granted the claim, which
included Mr. Polich’s symptoms of “short-term memory
loss and confusion.” Id. VA, however, assigned a 0% disa-
bility rating for residuals of a TBI, noting that Mr. Polich’s
memory loss was “unlikely due to his TBI” and it was
“likely that PTSD-type symptoms, slower cognitive pro-
cessing speed, and poor sleep contributed to his memory
impairment at that time.” Id. (alterations adopted).
Reports from later VA examinations concurred. Those
examinations, conducted in 2019, concluded that
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POLICH v. COLLINS 3
Mr. Polich had reported progressively worsening short-
term memory loss problems since the 1990s, but because of
the “date of onset provided by the veteran, [they] [are] less
likely as not due to his TBI because TBI residuals begin
around the time of the injury, not decades later.” Id. at *2
(internal quotation marks omitted). The 2019 TBI exam-
iner was aware of Mr. Polich’s diagnoses of PTSD and TBI.
Id. She was, however, “unable to opine on what portion of
the soldier’s reported . . . symptoms are due to the residu-
als of his TBI alone without resorting to pure speculation
due to the common overlapping of symptoms identified for
both conditions.” Id. (alteration adopted).
VA subsequently continued Mr. Polich’s 50% rating for
PTSD and 0% rating for TBI residuals based on its evalua-
tion of which diagnosis “provide[d] the greater benefit.” Id.
This evaluation represented a 50% rating “for the com-
bined effects of PTSD and TBI” because under the rating
criteria for TBI, Mr. Polich’s symptoms would warrant a
40% rating. Id. at *3 (alterations adopted). VA thus kept
the 50% rating for PTSD instead of the potential 40% rat-
ing for TBI because the higher rating provided a greater
benefit to Mr. Polich.
The Board agreed with that conclusion, id., and the
Veterans Court affirmed. Id. at *1. Mr. Polich timely ap-
pealed.
DISCUSSION
Mr. Polich’s arguments do not raise a legal issue over
which we have jurisdiction. See 38 U.S.C. § 7292(d)(2).
First, we disagree with Mr. Polich that the Veterans
Court interpreted 38 C.F.R. § 4.124a, DC 8045. See Appel-
lant Br. 10. Rather, the court applied that regulation to
the record before it. Under that regulation, “[i]f the mani-
festations of two or more conditions cannot be clearly sep-
arated,” VA is to “assign a single evaluation under
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4 POLICH v. COLLINS
whichever set of diagnostic criteria allows the better as-
sessment of overall impaired functioning due to both con-
ditions.” 38 C.F.R. § 4.124a, DC 8045 note 1. The Veterans
Court found that Mr. Polich had failed to identify any evi-
dence demonstrating that his “memory impairments are
separable from his PTSD.” Decision, 2024 WL 4002743, at
*5. In fact, it explained that “the record . . . directly con-
tradicts his theory.” Id. at *6. For support, the Veterans
Court quoted the VA examiner report that concluded
Mr. Polich’s memory impairment was unlikely “due to his
TBI” because his symptoms began decades after the trig-
gering injury. Id. That same examiner, moreover, deemed
it “pure speculation” to attempt to definitively assign the
source of Mr. Polich’s memory impairment to either PTSD
or TBI. Id. Mr. Polich’s disagreement with Veterans
Court’s analysis is a factual issue that we lack jurisdiction
over. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed.
Cir. 2009) (determining that the Veterans Court’s findings
of whether the “manifestations of one mental disorder” are
“also manifestations of . . . [an]other” is a factual finding
outside our jurisdiction).
The remainder of Mr. Polich’s arguments are predi-
cated on his contention that the Board favorably deter-
mined that his memory impairment resulted from TBI, and
TBI alone. See, e.g., Appellant Br. 24 (“On appeal the
Board confirms that his TBI causes the said memory im-
pairments.”). The Veterans Court found, however, that
“[t]his is not correct.” Decision, 2024 WL 4002743, at *5.
“The Board simply did not make the finding [Mr. Polich]
suggests it did.” Id. “The Board found that the evidence
did not show that the appellant’s memory symptoms could
be separated from his PTSD.” Id. Mr. Polich’s contentions
to the contrary are factual issues we cannot review. Relat-
edly, to the extent Mr. Polich argues that the VA, Board, or
Veterans Court erred in selecting the correct diagnosis code
under which to classify his symptoms, that too is a question
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POLICH v. COLLINS 5
of application of law to fact we cannot review. Delisle v.
McDonald, 789 F.3d 1372, 1374 (Fed. Cir. 2015).
CONCLUSION
We have considered Mr. Polich’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
dismiss.
DISMISSED