                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit

No. 08-1885

                            CESAR QUIÑONES,

                        Plaintiff, Appellant,

                                     v.

                      UNITED STATES OF AMERICA,

                         Defendant, Appellee.


                 APPEAL FROM THE DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jaime Pieras, Jr., U.S. District Judge]


                                  Before


                       Lynch, Chief Judge,
                 Lipez and Leval,* Circuit Judges.


          Daliah Lugo Auffant with whom Pérez Vargas & Lugo Auffant
Law Offices, P.S.C. were on the brief for appellant.
          Steve Frank with whom Leonard Schaitman was on the brief
for Gregory G. Katsas, Assistant Attorney General, and Rosa Emilia
Rodriguez-Velez, for appellee.



                             April 29, 2009




     *
      Of the United States Court of Appeals for the Second Circuit,
sitting by designation.
               LEVAL,    Circuit    Judge.       Cesar    Quiñones      (“Plaintiff”)

appeals from the judgment of the United States District Court for

the District of Puerto Rico (Pieras, J.) granting summary judgment

in favor of Defendant, the United States of America.                     Plaintiff’s

claim, brought under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. §§ 2671 et seq., is essentially that the doctors of the

United     States        Veterans     Administration           (“VA”)    negligently

misdiagnosed his illness as schizophrenia, when in fact he was

suffering       from     post-traumatic      stress      disorder    (“PTSP”),     and

accordingly failed to treat his illness correctly.                      The district

court dismissed the claim because Plaintiff failed to present his

administrative claim to the VA within two years as required by the

Act.   We affirm.

                                     BACKGROUND

               Plaintiff served in the army from 1964 to 1967 and saw

combat in the Vietnam War as a medic.                 Since his return from the

Vietnam     War,        Plaintiff    has     suffered      difficulty       sleeping,

depression,        isolative         behavior,        nightmares,        flashbacks,

hallucinations, homelessness, difficulty maintaining employment,

marital strife, and a suicide attempt.

               Between 1968 and 1983, Plaintiff was diagnosed with

schizophrenia and treated for it on several occasions at the San

Juan Veterans’ Medical Center (“SJVMC”).                   He was hospitalized a

number    of    times     during    this   period.       The    diagnosis    for   one


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hospitalization was “schizophrenic reaction, catatonic type.”                       He

was treated during hospitalization with a number of medications and

psychotherapy.

            In October 1983, Plaintiff was diagnosed for the first

time at SJVMC with PTSD, in addition to schizophrenia.                             The

diagnosis at this time included both schizophrenia and PTSD.

Thereafter,    Plaintiff    sought   numerous      times      to    claim    service

connection for PTSD.      Service connection requires medical evidence

diagnosing the condition, a link between current symptoms and an

in-service stressor, and credible supporting evidence that the

claimed in-service stressor occurred.           Plaintiff’s requests were

denied a number of times, including in June 1994, June 2002, and

July 2006.

            On January 20, 1994, Plaintiff received a Compensation

and Pension Exam Report, pursuant to evaluation of his claim for

service-connected PTSD diagnosis.          In this exam, his diagnosis was

“[s]chizophrenia   undifferentiated        type,    in   remission          of   acute

systems.”    The report stated, “It is the unanimous opinion of the

Board that there is no clinical evidence in history or in clinical

evaluation for a Post Traumatic Stress Disorder diagnosis.”

            He received another Compensation and Pension Exam Report

in June 1999 in Florida.         This time, however, the report stated,

“While   the   patient     has    been   diagnosed       as    undifferentiated

schizophrenia,   the     patient’s   symptoms      now   and       description      of


                                     -3-
symptoms since his time in Vietnam are more consistent with a

diagnosis of post-traumatic stress disorder.” The stated diagnosis

was   PTSD   and        history   of     undifferentiated       schizophrenia.       A

Compensation and Pension Exam Report based on an examination in

September 2000, by a doctor at a VA facility in Florida, concurred

with the PTSD diagnosis.                The reporting doctor stated, “I agree

with [the June 1999] assessment that although the patient was

diagnosed with undifferentiated schizophrenia during his time in

the military service, his symptoms now and the description of his

symptoms since his time in Vietnam are more consistent with that of

a   diagnosis      of    posttraumatic         stress   disorder.”     This   report

concluded,        “Again,     I    do    not     feel   that    the   diagnosis     of

schizophrenia is an accurate one.                I do feel that he suffers from

posttraumatic        stress       disorder,      and    that    accounts    for    his

hallucinations and delusions as well as the depressive component

that i[s] seen in this patient.”

             In    his     deposition,      Plaintiff     was    asked,    “And   what

diagnosis did they g[i]ve you at VA in Orlando, VA Hospital.”                       He

answered, “They both said I had PTSD, not schizophrenia and I was

evaluated twice in [Florida]; once by [Dr. O’Dell] and I don’t

remember the name of the other doctor but they came to the same

determination . . . .”

             Plaintiff testified that after his time in Florida he

went to Panama in 2004, where a private psychiatrist said that he


                                           -4-
was being given the wrong medication because the schizophrenia

diagnosis was incorrect.    In October 2005 Plaintiff requested from

the VA a copy of his records.

            Plaintiff filed an administrative claim with the VA in

May 2006.     He claimed medical malpractice for wrongful diagnosis

and treatment and he claimed physical and emotional damages.         He

stated that the VA wrongfully diagnosed him with and treated him

for schizophrenia.

            After waiting the requisite six months without an agency

decision on his claim, Plaintiff filed the instant action in May

2007.1    Defendant moved for summary judgment on the ground that the

district court lacked subject matter jurisdiction because Plaintiff

failed to file a timely administrative claim with the VA.            The

district court agreed and entered judgment in favor of Defendant.

                              DISCUSSION

            “Summary judgment is appropriate when there is no genuine

issue as to any material fact and the moving party is entitled to

judgment as a matter of law based on the pleadings, depositions,

answers     to   interrogatories,    admissions   on   file,   and   any

affidavits.”     Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st

Cir. 2008). This Court reviews a district court’s grant of summary


     1
      Under the FTCA, a claimant must present his claim to the
appropriate government agency and await either a final disposition
of the claim or the passage of six months without such a
disposition before filing suit in district court.     28 U.S.C. §
2675(a).

                                    -5-
judgment de novo, construing the record evidence in the light most

favorable to the nonmoving party.        Dennis v. Osram Sylvania, Inc.,

549 F.3d 851, 855 (1st Cir. 2008).

            The FTCA’s statute of limitations provides, in relevant

part, that “[a] tort claim against the United States shall be

forever barred unless it is presented in writing to the appropriate

Federal agency within two years after such claim accrues.”           28

U.S.C. § 2401(b).      Under the discovery rule, which applies to

medical malpractice claims, a claim accrues when the plaintiff

knows both the existence and cause of his injury.           McIntyre v.

United States, 367 F.3d 38, 51 (1st Cir. 2004).

            Plaintiff filed his administrative claim with the VA in

May 2006.     As a result, the FTCA statute of limitations bars his

claim unless his claim accrued within two years prior to such date.

Plaintiff acknowledged in his deposition that in his consultation

at the VA clinic in Orlando in 1999, he was given a diagnosis of

“PTSD, not schizophrenia.”    He acknowledged further that when he

was evaluated again in Florida the doctors gave him the same

determination. Upon his receipt of those pieces of advice that his

earlier schizophrenia diagnosis was incorrect, his claim accrued.

At that point, he was obligated, in order to preserve his claim, to

present it in writing within two years to the appropriate Federal

Agency.     28 U.S.C. § 2401(b).   He did not file an administrative

claim until 2006, which was not timely.        As a result, his claim is


                                   -6-
barred.   The district court properly granted summary judgment on

this ground.

          We have reviewed Plaintiff’s other arguments and find

them to be without merit.   We affirm.




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