Sunday, April 12, 2009

FedCir. requirement of medical evidence demonstrating an etiological link directly contradicts § 3.303(b), Groves v. Peake, No. 2007-7241

The Board’s, and subsequently the Veterans Court’s, requirement of medical evidence demonstrating an etiological link directly contradicts this interpretation of § 3.303(b) under which Mr. Groves was entitled to a presumption of service connection given that his condition diagnosed in service was chronic.

Groves v. Peake, M.D.,No. 2007-7241(Fed.Cir. DECIDED: May 1, 2008)

38 C.F.R. § 3.303(a) provides that service connection “may be accomplished by affirmatively showing inception or aggravation during service . . .” This provision further instructs that “[d]eterminations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.” Id. § 3.303(a). Section 3.303(a) provides that each disabling condition for which a veteran seeks service connection “must be considered on the basis of . . . all pertinent medical and lay evidence.” See also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
Subsection (b), titled “Chronicity and continuity,” establishes the circumstances under which service connection is attributed to a chronic disability incurred or aggravated during active service. 38 C.F.R. § 3.303(b). It provides in relevant part:
With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.
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§ 3.303(b) further provides that: “When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to
support the claim.”

The plain language of § 3.303(b) establishes a presumption of service connection (rebuttable only by “clearly attributable intercurrent causes”) for a chronic disease which manifests during service and then again “at any later date, however remote.” Id. The Board’s, and subsequently the Veterans Court’s, requirement of medical evidence demonstrating an etiological link directly contradicts this interpretation of § 3.303(b) under which Mr. Groves was entitled to a presumption of service connection given that his condition diagnosed in service was chronic.

[The Veterans Court affirmed the Board’s decision. The Veterans Court explained that, notwithstanding the RO’s error in failing to account for Mr. Groves’ in-service diagnosis of schizophrenia, this error was not clear and unmistakable because the record at the time did not necessitate a change in outcome as it failed to contain medical evidence linking Mr. Groves’ post-service diagnosis of schizophrenia with his in-service diagnosis of schizophrenia.]

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United States Court of Appeals for the Federal Circuit
2007-7241
JAMES C. GROVES,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Virginia A. Girard-Brady, ABS Legal Advocates, P.A., of Lawrence, Kansas,
argued for claimant-appellant.
Brian T. Edmunds, 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 Jeffrey S. Bucholtz, Acting Assistant Attorney
General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of
counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and
Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, of
Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen.United States Court of Appeals for the Federal Circuit
2007-7241
JAMES C. GROVES,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 04-2375, Judge
Mary J. Schoelen.
__________________________
DECIDED: May 1, 2008
__________________________
Before MAYER, GAJARSA, and MOORE, Circuit Judges.
MOORE, Circuit Judge.

James C. Groves requests that we review the final judgment of the United States
Court of Appeals for Veterans Claims (Veterans Court) affirming the decision of the
Board of Veterans’ Appeals (Board). The Board held that a March 1982 regional office rating decision, which denied service connection for paranoid schizophrenia, did not contain clear and unmistakable error. We reverse and remand.

BACKGROUND
Mr. Groves served on active duty in the United States Army from August 1969 to
January 1972 and from September 1974 to December 1979. On August 29, 1979,.during service, Mr. Groves was diagnosed with an acute psychotic episode. Mr. Groves
was referred for further evaluation and diagnosed on September 7, 1979 with paranoid
schizophrenia. The diagnosis noted that Mr. Groves’ mental status seemed to be the same as during his hospitalization the month before. Upon his administrative discharge
in December 1979, Mr. Groves received a diagnosis of “antisocial personality disorder, chronic, severe.” This diagnosis did not mention schizophrenia, neither confirming nor denying Mr. Groves’ earlier diagnoses.
Post-service, in September 1981, Mr. Groves was hospitalized and diagnosed with paranoid schizophrenia. In November 1981, Mr. Groves was hospitalized again
and diagnosed with schizoaffective disorder. This second evaluation noted that Mr. Grove exhibited no symptoms of any personality disorders.
Subsequently, Mr. Groves filed a claim for service connection with his Veterans Affairs (VA) regional office (RO). A VA examination in January 1982 confirmed a
diagnosis of paranoid schizophrenia. The examiner’s report indicated that there were no service records of any kind available at that time. The report also stated that based
upon Mr. Grove’s own records “[a]s far as can be determined, a diagnosis of schizophrenic reaction, paranoid type has been made in the past and this is being
carried forward.” In March 1982, the RO issued a ratings decision that denied the service connection claim because there was “no evidence in [the service medical records] for treatment for [sic] a chronic [neuropsychiatric] condition.”
On June 13, 2000, Mr. Groves requested that the RO reopen his claim for a psychiatric disability on the grounds of new and material evidence and clear and unmistakable error in the March 1982 RO decision. Mr. Groves submitted an opinion

2007-7241 2.

from a VA psychiatrist dated June 12, 2000, which stated that, upon review of the service medical records, there was little doubt that the discharge diagnosis for Mr. Groves’ last active duty admission in August 1979 was for a psychotic episode. A VA examination was ordered and the examiner, who reviewed the records, concluded that “without any question, . . . this man started showing psychotic manifestations of a paranoid type of nature while on active duty and has continued to do so up until this moment . . .” Based on the VA examiner’s opinion, the RO granted service connection for paranoid schizophrenia, effective as of the date of the reopened claim. However, the RO concluded that the March 1982 ratings decision did not contain clear and
unmistakable error and accordingly denied Mr. Groves an earlier effective date for his benefits.
Mr. Groves appealed the denial of the earlier effective date to the Board, which affirmed the RO’s decision. The Board acknowledged that Mr. Groves had received a diagnosis of paranoid schizophrenia while in service. The Board also acknowledged that post-service, Mr. Groves had been hospitalized for paranoid schizophrenia and then hospitalized a second time for schizoaffective disorder. Nonetheless, the Board concluded that, despite the 1982 VA examination that diagnosed Mr. Groves with paranoid schizophrenia, the RO had not committed clear and unmistakable error because “there was no etiological opinion linking such condition to service” and “the evidence of the record in 1982 did not require a finding of service connection.”
The Veterans Court affirmed the Board’s decision. The Veterans Court explained that, notwithstanding the RO’s error in failing to account for Mr. Groves’ in-service diagnosis of schizophrenia, this error was not clear and unmistakable because

2007-7241 3.

the record at the time did not necessitate a change in outcome as it failed to contain medical evidence linking Mr. Groves’ post-service diagnosis of schizophrenia with his in-service diagnosis of schizophrenia.
Mr. Groves moved for reconsideration, asserting that, under 38 C.F.R. § 3.303(b), his in-service diagnosis was presumptively linked to his present diagnosis such that there was no need for him to provide further etiological medical evidence to establish the same. The Veterans Court granted his motion, issuing essentially the same opinion but adding that Mr. Groves’ “ultimate in-service diagnosis was antisocial personality disorder” and that reasonable minds could conclude that his personality disorder diagnosis at discharge was distinct from his schizophrenia diagnosis.

DISCUSSION
The scope of our review of a Veterans Court decision is limited by statute. See 38 U.S.C. § 7292. Under § 7292(a), we may review a decision by the Veterans Court with respect to the validity of “any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans]
Court in making the decision.” Further, absent a constitutional issue, we may not review challenges to factual determinations or challenges to the application of a law or
regulation to facts. Id. § 7292(d)(2). We review interpretation of regulations by the Veterans Court de novo and may set aside any regulation or interpretation of a regulation that we find to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to a constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a

2007-7241 4.

statutory right; or without observation of a procedure required by law. Id. § 7292(d)(1); Smith v. Nicholson, 451 F.3d 1344, 1347 (Fed. Cir. 2006).
Mr. Groves appeals to this court arguing that the Veterans Court erred in requiring evidence of a medical nexus, an “etiological link,” between the paranoid schizophrenia diagnosed during service and the paranoid schizophrenia diagnosed after discharge. Mr. Groves argues that this requirement imposed by the Veterans Court is in
direct contradiction to a proper interpretation of 38 C.F.R. § 3.303. We agree.

38 C.F.R. § 3.303(a) provides that service connection “may be accomplished by affirmatively showing inception or aggravation during service . . .” This provision further instructs that “[d]eterminations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.” Id. § 3.303(a). Section 3.303(a) provides that each disabling condition for which a veteran seeks service connection “must be considered on the basis of . . . all pertinent medical and lay evidence.” See also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
Subsection (b), titled “Chronicity and continuity,” establishes the circumstances under which service connection is attributed to a chronic disability incurred or aggravated during active service. 38 C.F.R. § 3.303(b). It provides in relevant part:
With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.

2007-7241 5.

Id. The plain language of § 3.303(b) establishes a presumption of service connection (rebuttable only by “clearly attributable intercurrent causes”) for a chronic disease which manifests during service and then again “at any later date, however remote.” Id. The Board’s, and subsequently the Veterans Court’s, requirement of medical evidence demonstrating an etiological link directly contradicts this interpretation of § 3.303(b)
under which Mr. Groves was entitled to a presumption of service connection given that his condition diagnosed in service was chronic.
By its own regulations, the Department of Veterans Affairs has classified as chronic particular diseases, including psychoses, pursuant to 38 C.F.R. § 3.309(a), and the parties do not dispute that paranoid schizophrenia is a psychosis.1 See 38 C.F.R. §§ 3.309(a) (listing chronic diseases); 4.130 (schizophrenia is listed in the ratings schedule “Schizophrenia and Other Psychotic Disorders”). It is undisputed that Mr. Groves was diagnosed with paranoid schizophrenia during service and again shortly after discharge. The Veterans Court therefore committed legal error by disregarding the applicability of § 3.303(b) and requiring medical evidence to establish a nexus between
the two diagnoses. In applying the legal standards discussed above to the undisputed diagnoses in the record, we conclude as a matter of law that Mr. Groves is entitled to
service connection for paranoid schizophrenia. See Bailey v. Principi, 351 F.3d 1381, 1384 (Fed. Cir. 2003) (en banc) (treating the availability of a legal standard as a matter
of law that we are authorized by statute to address where the material facts are not in

1 Even if paranoid schizophrenia were not defined as chronic by the regulations, § 3.303(b) further provides that: “When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” The parties do not dispute that Mr. Groves was diagnosed with paranoid schizophrenia in September 1979 (during service) and diagnosed with paranoid schizophrenia again in September 1981 (shortly after discharge).

2007-7241 6.2007-7241 7

dispute and the adoption of a particular legal standard would dictate the outcome of a veteran’s claim). In light of our interpretation of § 3.303(b), the March 1982 ratings
decision contained clear and unmistakable error. Mr. Groves is entitled to an earlier effective date for his benefits. Accordingly, we reverse the determination of the Veterans Court and remand for entry of judgment consistent with this opinion.
REVERSED and REMANDED

FedCir, Informal claim, 3.155 and 3.157, psychologist report, Lechliter v. Peake, No. 2008-7024

NOTE: This disposition is nonprecedential.

the psychologist’s report cannot be interpreted as an informal claim under 38 C.F.R. § 3.155(a), because it did not “identify the benefit sought.” The DVA regulations also provide that until a “formal claim for pension or compensation has been allowed or . . . disallowed,” a “[r]eport of examination or hospitalization by DVA or uniformed services” cannot serve as an informal claim. 38 C.F.R. § 3.157(b)(1). See MacPhee v. Nicholson, 459 F.3d 1323, 1327-8 (Fed. Cir. 2006). Here, a formal claim had not been allowed or disallowed at the time of the psychologist’s report; for that reason, the report did not constitute an informal claim.
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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7024
GERALD A. LECHLITER,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Gerald A. Lechliter, of Lewes, Delaware, pro se.
Lauren S. Moore, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
her on the brief were Jeffrey S. Bucholtz, Assistant Attorney General; Jeanne E.
Davidson, Director; and Todd M. Hughes, Deputy Director.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Alan G. Lance, Sr..NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7024
GERALD A. LECHLITER,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 04-1568,
Judge Alan G. Lance, Sr.
___________________________
DECIDED: June 20, 2008
___________________________
Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and BRYSON, Circuit
Judge.
PER CURIAM.

DECISION
Gerald A. Lechliter appeals from a judgment of the United States Court of
Appeals for Veterans Claims (“the Veterans Court”), which affirmed a decision of the Board of Veterans’ Appeals (“the BVA”). We affirm.

BACKGROUND
Mr. Lechliter served in the United States Marine Corps from October 1967 to July
1969 and in the United States Army from July 1974 until his retirement in May 1999..When he retired, he had attained the rank of colonel. In April 1999, Mr. Lechliter
submitted a claim for service-connection for various conditions. Following an
examination by the Department of Veterans Affairs (“DVA”), a DVA rating board in
October 1999 granted service connection for various disabilities, resulting in a disability rating of 50 percent. However, the rating board denied his claim for service connection for hyperlipidemia, a history of positive stress tests, and pre-syncopal episodes on the ground that they were not compensable disabilities. The regional office subsequently denied his claim to a disability rating in excess of 10 percent for service-connected residuals of a left-elbow disorder. In November 1999, Mr. Lechliter filed a Notice of Disagreement with the October 1999 rating decision.
Mr. Lechliter also filed a claim for total disability and individual unemployability
(“TDIU”) with the DVA regional office, in which he claimed that he was unable to work as of May 1999, when he retired from the Army. After an examination, a DVA
counseling psychologist concluded that although Mr. Lechliter had “impairments to his employability,” he did not have a “serious employment handicap” and recommended vocational assessment. Following vocational-educational counseling sessions in January 2000, a clinical psychologist stated that his “diagnostic impression” was that Mr. Lechliter suffered from an adjustment anxiety disorder. In February 2000, Mr. Lechliter was given a further DVA examination in connection with his TDIU claim, after which it was determined that he could “perform sedentary work for a full 8-hour day as long as he could periodically change position.”
In a letter received by the DVA on May 1, 2001, Mr. Lechliter sought to establish
service connection for “the stressors that are causing [his] problems.” The DVA

2008-7024 2.

provided Mr. Lechliter with a psychiatric examination in July 2002, and in August 2002 it
awarded him service connection for major depression at a rating of 70 percent, effective
May 1, 2001. Mr. Lechliter appealed to the BVA, which denied his request for an
effective date earlier than May 1, 2001, for his major depression condition and denied
his request for TDIU benefits for the period from June 1999 through April 2001. In
addition, the BVA denied an initial compensable disability rating for postural syncope
and denied an initial disability rating in excess of 10 percent for residuals of his left-elbow
disability. On appeal, the Veterans Court remanded Mr. Lechliter’s claim for an
initial rating of greater than zero percent for postural synocope but affirmed the
remainder of the BVA’s decision.

DISCUSSION
Pursuant to 38 U.S.C. § 7292(a), we may review “the validity of a decision of the
[Veterans] Court on a rule of law or of any statute or regulation . . . or any interpretation
thereof (other than a determination as to a factual matter) that was relied on by the
[Veterans] Court in making the decision.” Except to the extent that an appeal presents
a constitutional issue, we may not review “(A) a challenge to a factual determination, or
(B) a challenge to a law or regulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2).
Although the Veterans Court remanded one of Mr. Lechliter’s claims to the BVA,
that remand does not deprive us of jurisdiction to address this appeal. We have held
that “when a veteran has packaged all his claims in a single appeal to the Veterans
Court, it would be unfair to deny the veteran an immediate appeal of a final decision as
to one or more of his claims simply because an additional claim is remanded for further

2008-7024 3.

proceedings.” Elkins v. Gober, 229 F.3d 1369, 1376 (Fed. Cir. 2000). That rule applies
here. Mr. Lechliter combined his four claims in a single case. The Veterans Court
affirmed the BVA’s rulings with respect to three of Mr. Lechliter’s claims and remanded
with respect to the fourth. The remanded claim, which pertains to the rating decision for
postural synocope, is not intertwined with the three claims for which the BVA’s judgment
was affirmed. Therefore, we have jurisdiction to review the Veterans Court’s decision
as to those three claims.
I
Mr. Lechliter seeks an effective date earlier than May 1, 2001, for his 70 percent
disability rating for depression. Pursuant to 38 C.F.R. § 3.400(b)(2)(i), Mr. Lechliter
would have been granted service connection effective the day after he retired if he had
filed his claim within one year of leaving the service. Because he did not file within that
time, service connection is effective from the “date of receipt of claim, or date
entitlement arose, whichever is later.” 38 C.F.R. § 3.400(b)(2)(i). The “date of receipt,”
except for a few exceptional circumstances not applicable here, is “the date on which a
claim, information or evidence was received in the Department of Veterans Affairs.” 38
C.F.R. § 3.1(r). Here, the BVA found and the Veterans Court confirmed that Mr.
Lechliter’s letter was received on May 1, 2001, more than one year after his discharge
from the service in May 1999.
Mr. Lechliter argues that the clinical psychologist’s January 2000 report is
evidence of Mr. Lechliter’s depression prior to May 2001 and that it should be
considered an informal claim for service connection for depression. DVA regulations
recognize an “informal claim” if it “identifies the benefits sought." 38 C.F.R. § 3.155(a).

2008-7024 4.

If a formal claim is filed within one year of the informal claim, then the formal claim is
given the effective date of the informal claim. Id. Mr. Lechliter argues that in light of a
provision in the DVA’s Adjudication Procedure Manual (“DVA Manual”), M21-1, Part VI,
1.09d, which states that the DVA “may accept . . . diagnosis or evaluation of mental
disorders conducted by clinical psychologists at a GS13 or higher level,” the
psychologist’s report should have been accepted as an informal claim.
We disagree, for several reasons. The portion of the DVA Manual to which Mr.
Lechliter refers merely indicates which government clinical psychologists (those at
grade level GS-13 or higher) are competent to diagnose or evaluate mental disorders.
It does not relate to the quantum of evidence needed to establish the “date of receipt” of
an informal claim for purposes of 38 C.F.R. § 3.1(r). In addition, the psychologist’s report cannot be interpreted as an informal claim under 38 C.F.R. § 3.155(a), because it did not “identify the benefit sought.” The DVA regulations also provide that until a “formal claim for pension or compensation has been allowed or . . . disallowed,” a “[r]eport of examination or hospitalization by DVA or uniformed services” cannot serve as an informal claim. 38 C.F.R. § 3.157(b)(1). See MacPhee v. Nicholson, 459 F.3d 1323, 1327-8 (Fed. Cir. 2006). Here, a formal claim had not been allowed or disallowed at the time of the psychologist’s report; for that reason, the report did not constitute an informal claim. Moreover, even assuming that the report was an informal claim under
section 3.155(a) or section 3.157(b)(1) at the time it was generated, as opposed to
when it was transmitted, a formal claim must be filed within a year in order for an
informal claim to mature. 38 C.F.R. § 3.155(a). Mr. Lechliter did not file his May 2001
formal claim within one year of the psychologist’s diagnosis in January 2000, and thus
2008-7024 5.he did not satisfy the requirements of that section. Finally, the Veterans Court
concluded that the psychologist’s report was not received until November 2001, after
the filing of the formal claim in May 2001. For that reason as well, the report cannot
serve as an earlier claim.
Citing 38 U.S.C. § 5103A, the statute that imposes a duty on the DVA to assist
veterans with their claims, Mr. Lechliter argues that the DVA was required to provide
him with an additional psychiatric evaluation or to fashion a claim for service connection
for depression or a nervous condition. As to the latter, the duty to assist does not
require the DVA to create a claim on behalf of the veteran; it only requires assistance
with existing claims. As to the former, the statutory duty is not triggered without an
underlying claim, as is evidenced by the statute’s language, which refers to “evidence to
substantiate the claimant’s claim.” 38 U.S.C. § 5103A(a)(1). Neither of Mr. Lechliter’s
1999 claims mentions a nervous condition or depression. There was therefore no
violation of the statutory duty to assist.
With respect to his argument regarding “the legal requirements for establishing a
‘chronic’ service-connected disability under 38 C.F.R. § 3.03(b)(2000),” Mr. Lechliter
provides only a fact-based contention that the DVA should have ruled in his favor. In
particular, he challenges the BVA’s finding that his medical record did not contain any
indications of psychological problems. The Veterans Court noted, however, that the
BVA found no evidence of psychological problems in his medical examination board
record and his separation examination.
The Veterans Court pointed out that the reports of Mr. Lechliter’s 1997 and 1998
physical examinations contained check marks next to the words “depression or


2008-7024 6.

excessive worries.” The court, however, concluded that those check marks did not
reflect a history of depression. The court pointed out that the only elaboration on the
issue was in the 1997 examination report, in which a physician’s note referred to
“excessive worries.” The court concluded that the physician’s note did not constitute a
diagnosis of depression, “much less one that would qualify as a chronic condition.” In
taking issue with the court’s conclusion on this question, Mr. Lechliter is essentially
asking that we review a factual determination as to whether the medical record reflected
a depression condition. That task is outside of our jurisdiction.
Mr. Lechliter notes that the DVA’s rating decision denied service connection for
three ailments—pilonidal cyst, tonsillectomy, and dental implants—that were referred to
in his medical record, and he points out that those “obscure” conditions were considered
in the rating decision even though they were not specifically referred to in his April 1999
application for service connection. Because the rating board noted those conditions,
Mr. Lechliter argues that it should have been on notice of his depression and that his
depression claim should therefore get an earlier effective date for service connection.
The rating board’s consideration of the three listed conditions, for which Mr. Lechliter’s medical records reflected diagnoses and treatment, does not indicate that the DVA was on notice of other conditions such as depression. For the same reason, we reject Mr.
Lechliter’s argument based on DVA Manual M21-1, Part VI, 1.01b. That provision
requires the rating board to take additional steps if “evidence of record is insufficient for
rating all the claimed and noted disabilities.” As pointed out above, Mr. Lechliter’s
medical record did not put the DVA on notice of his depression claim.

2008-7024 7.

Finally, in his reply brief Mr. Lechliter asserts that the DVA medical examiner who
conducted his examination in June 1999 failed to note that he had complained of
suffering from depression. Regardless of whether such a statement was made to the
examiner, however, such a statement does not constitute a formal or informal claim,
and it cannot serve as the basis for an earlier effective date for his claim of service
connection for depression.1
II
Regarding his TDIU claim, Mr. Lechliter argues that the Veterans Court
misinterpreted 38 C.F.R. § 4.16(a) because it relied on the BVA’s finding that he was
capable of “gainful employment”; he maintains that the BVA used the wrong legal
standard because it did not state that he was capable of “substantially gainful
employment.” Mr. Lechliter also argues that the “absence of actual evidence” that he
could not engage in substantially gainful employment is not evidence that he could
engage in substantially gainful employment and that the BVA’s finding was flawed for
that reason as well.
Section 4.16(a) of the DVA’s regulations provides that “[t]otal disability ratings for
compensation may be assigned, where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency, unable to secure or follow a
substantially gainful occupation as a result of service-connected disabilities . . . .” The
1 Mr. Lechliter makes the related claim that his due process rights were
violated when the DVA overlooked his depression during his examination. Mr. Lechliter
does not offer any plausible basis for the assertion that the DVA’s failure to detect and
generate a claim for his mental condition resulted in a constitutional deprivation. We
reject that contention as baseless.
2008-7024 8.BVA and the Veterans Court correctly applied section 4.16(a). The Veterans Court
noted that after reviewing Mr. Lechliter’s medical records the BVA had found that the
evidence did not suggest “an incapacity for gainful work” and that “there was no
competent medical evidence to suggest he could not follow substantially gainful
employment.” The evidence relied on by the BVA, including that Mr. Lechliter has a
graduate degree, 25 years of military experience, and can perform a sedentary job for 8
hours, supports the finding that he could “secure or follow a substantially gainful
occupation.” The Veterans Court’s observation that there was an absence of evidence
to the contrary does not suggest that the court applied the regulation incorrectly.
Furthermore, Mr. Lechliter has not shown that the BVA’s use of a shorthand reference,
finding that he could engage in “gainful employment,” indicates that the BVA failed to
apply the “substantially gainful employment” standard correctly.
Mr. Lechliter argues that the BVA improperly relied on a December 1999
vocational rehabilitation report as part of its basis for denying his TDIU claim. However,
nothing that Mr. Lechliter points to precludes using information from a vocational
rehabilitation assessment once it has been performed. Mr. Lechliter relies on a DVA
General Counsel’s opinion, Op. Gen. Counsel Prec. 08-94 (1994). That opinion,
however, addresses when a vocational rehabilitation assessment can be performed, not
what uses the DVA can make of such an assessment in benefits decisions. The opinion
states that “[a]bsent a policy determination on the use of an employability assessment in
deciding [individual unemployability] claims, and absent appropriate regulations,
administrative procedures, and delegation of authority implementing such policy, we
recommend against inviting or encouraging even consensual use of the [vocational

2008-7024 9.

rehabilitation] assessment on an ad hoc basis in future cases.” Id. at 5. That
statement, however, constitutes only a recommendation. Moreover, the opinion
authorizes a vocational rehabilitation assessment agreed to by the parties for the purpose of determining individual employability to be “conducted on an ad hoc basis by any agency competent to do so as informally designated by the Secretary.” Id. The
opinion thus condones the use of information from a previously conducted vocational
rehabilitation assessment in a TDIU assessment.
Mr. Lechliter next argues that the BVA and the Veterans Court should have
weighed the psychologist’s report more heavily in determining whether to award
benefits. In addition, he contends that the compensation and disability examination and
the vocational rehabilitation examination provided inadequate support for the decision to
deny his claim. He also contends that the BVA failed to advert to the effect of his
various physical conditions, such as “inadequately controlled hypertension exacerbated
by stress” on his ability to obtain substantially gainful employment. Each of these
arguments in essence raises a factual contention, and for that reason, we lack
jurisdiction to consider them.
Mr. Lechliter next asserts that the Veterans Court misinterpreted the statutory,
regulatory, and case law requirements governing a compensation and pension disability
examination and reports of medical examinations. In particular, he asserts that the
Veterans Court misinterpreted 38 C.F.R. §§ 3.340(a), 4.15, and 4.16(a). Those
regulations, however, were not mentioned by the Veterans Court, and it does not
appear that the Veterans Court interpreted them in any way. Mr. Lechliter makes
various claims about the inadequacy of the examinations conducted in his case, such


2008-7024 10.2008-7024 11


as whether the reports of those examinations were comprehensive enough, whether the
clinician should have used a different approach in considering the service connection
determinations, whether expert medical evidence should have been given more weight,
and whether the BVA correctly weighed the evidence. Those issues present factual
contentions that are not within our jurisdiction to review.
III
Finally, Mr. Lechliter argues that the Veterans Court misinterpreted statutes,
regulations, or case law when it denied his request to remand with instructions to
increase the rating for his elbow ailment. He argues that the decision review officer
misinterpreted DVA Manual M21-1, Part VI, 2.07(b) and 38 C.F.R. § 3.159(a) because the decision review officer substituted his own judgment for that of the medical examiner. The crux of Mr. Lechliter’s argument, however, is that the decision review officer should have accorded more weight to an MRI examination performed in June 2002 and should have ordered another evaluation to study the significance of the MRI.
Mr. Lechliter also argues that under 38 C.F.R. § 4.40 he was entitled to a higher rating because the regulation allows higher ratings based on pain and he asserts that he has pain. Once again, these arguments are factual in nature; Mr. Lechliter has not pointed to any improper interpretation of rules or regulations, but simply contends that the application of those authorities should have resulted in a different outcome in his case.
For the foregoing reasons, we affirm the decision of the Veterans Court.

FedCir. Free-standing constitutional claim, Rauch v. Peake, No. 2007-7199

He argues that we have jurisdiction over his appeal because, by making this argument, he is asserting a free-standing constitutional claim based upon a violation of due process. See In re Bailey, 182 F.3d 860, 865 (Fed. Cir. 1999) (establishing this court’s jurisdiction over free-standing constitutional issues in appeals from the Veterans Court). While it is true that we have held that we have jurisdiction over free-standing constitutional claims, see id., Mr. Rauch has not asserted such a claim.
++++++++++++++++++++++++++++++++++++++++++++++

in the face of factual determinations that he does not challenge and that demonstrate the absence of impropriety on the part of the individuals involved, Mr. Rauch simply makes bald, unsupported assertions of bias on the part of the RO. Such assertions are insufficient to make out a true constitutional claim.
++++++++++++++++++++++++++++++++++++++++++++++


NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7199
EARL M. RAUCH,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Elbert Lin, Wiley Rein LLP, of Washington, DC, argued for claimant-appellant.
On the brief was Mark R. Lippman, The Veterans Law Group, of La Jolla, California.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-appellee.
With her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney
General; Jeanne E. Davidson, Director; and Martin F. Hockey, Jr., Assistant Director.
Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel,
and Jamie L. Mueller, Attorney, Office of the General Counsel, United States
Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Lawrence B. Hagel.NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7199
EARL M. RAUCH,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 05-816, Judge
Lawrence B. Hagel.
DECIDED: May 21, 2008
Before NEWMAN, Circuit Judge, PLAGER, Senior Circuit Judge, and SCHALL, Circuit
Judge.
SCHALL, Circuit Judge.
DECISION
Earl M. Rauch appeals the final decision of the United States Court of Appeals
for Veterans Claims (“Veterans Court”) that affirmed the December 14, 2004 decision of
the Board of Veterans’ Appeals (“Board”) denying Mr. Rauch’s claim to service
connection for respiratory disease. Rauch v. Nicholson, No. 05-816, 2007 WL 716106
(Vet. App. Feb. 22, 2007). We dismiss for lack of jurisdiction..DISCUSSION
I.
The relevant facts are set forth in the decisions of the Board and Veterans Court.
Briefly, Mr. Rauch served on active duty in the United States Army from November of
1971 to April of 1972, and from November of 1990 to May of 1991. In December of
1997, Mr. Rauch filed a claim with the Department of Veterans Affairs (“VA”) seeking
service connection for chronic obstructive pulmonary disease allegedly caused by
exposure to toxins during the First Gulf War. In October of 1998, a VA regional office
(“RO”) denied service connection for chronic obstructive pulmonary disease on the
ground that the diagnosis was too far removed from service. Mr. Rauch appealed the
decision, and in October of 2002, the Board remanded the case to the RO for further
development. Eventually, the RO again denied service connection. It did so largely on
the basis of the opinion of Dr. C. Paul Loehnen, a private physician to whom the RO
had referred Mr. Rauch’s case. Dr. Loehnen opined that Mr. Rauch’s “difficulties” were
“in large part secondary to his morbid obesity” and commented that he did not find
“anything in the record that would lead [him] to conclude [that] there is a service-related
disability regarding [Mr. Rauch’s] pulmonary status.”
Mr. Rauch again appealed to the Board, which this time denied his claim.
Reviewing the evidence before it, the Board credited the opinion of Dr. Loehnen over
that of another doctor who had examined Mr. Rauch. The Board noted that Dr.
Loehnen had explained that exposure to toxins would typically lead to acute problems
during service and that Mr. Rauch’s records reflected no lung problems during his time
in service.

2007-7199 2.

Following the Board’s decision, Mr. Rauch appealed to the Veterans Court. As
noted above, the court affirmed the Board’s denial of Mr. Rauch’s claim. In its decision
the court rejected the two contentions raised by Mr. Rauch on appeal. The first
contention was that the VA’s further development of the claim (asking Dr. Loehnen for
an opinion) was improper in view of the fact that a 1998 VA medical examination by Dr.
Rick A. Lamb reflected a diagnosis of chronic obstructive pulmonary disease and noted that Mr. Rauch had been “in an area of Saudi Arabia that was dense with oil smoke
after oil fires were lit in Kuwait.” According to Mr. Rauch, under these circumstances, the further development of the claim was improper because it was for the purpose of obtaining evidence to deny the claim. Mr. Rauch’s second contention was that RO personnel “were biased against [his] claim in violation of due process of law.” In Mr. Rauch’s view, this was evidenced by the fact that information that tended to detract from a finding of service connection was presented to Dr. Loehnen and that communications at the RO unduly “suggest[ed] an answer or limit[ed] the field of inquiry by the expert”
(Dr. Loehnen). The Veterans Court rejected both contentions. As far as the issue of further development of Mr. Rauch’s claim was concerned, the court determined, the VA had discretion to develop additional evidence because of the conflicting and unclear nature of the evidence before the VA on the issue of service connection. Addressing Mr. Rauch’s claim of bias, the court stated that it did not agree that the RO documents presented to Dr. Loehnen suggested a predetermined answer with respect to Mr. Rauch’s claim. In addition, the court noted that Mr. Rauch did not challenge the accuracy of the information that was given to Dr. Loehnen. The court also noted that

2007-7199 3.

the questions which were posed to Dr. Loehnen were asked in an unbiased fashion.
Following the Veterans Court’s decision, Mr. Rauch timely appealed to this court.
II.
Our authority to review decisions of the Veterans Court is governed by statute.
Pursuant to 38 U.S.C. § 7292(c), we have “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under [that] section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” However, “[e]xcept to the extent that an appeal under . . . chapter [72] presents a constitutional issue, [we] may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2)(2000).
On appeal, as he did before the Veterans Court, Mr. Rauch contends that personnel at the RO were biased against his claim. He argues that we have jurisdiction over his appeal because, by making this argument, he is asserting a free-standing constitutional claim based upon a violation of due process. See In re Bailey, 182 F.3d 860, 865 (Fed. Cir. 1999) (establishing this court’s jurisdiction over free-standing constitutional issues in appeals from the Veterans Court). While it is true that we have held that we have jurisdiction over free-standing constitutional claims, see id., Mr. Rauch has not asserted such a claim. Rather, in the face of factual determinations that he does not challenge and that demonstrate the absence of impropriety on the part of
the individuals involved, Mr. Rauch simply makes bald, unsupported assertions of bias on the part of the RO. Such assertions are insufficient to make out a true constitutional claim. Thus, Mr. Rauch has not presented a claim within our jurisdiction.

2007-7199 4.2007-7199 5

For the foregoing reasons, we must dismiss Mr. Rauch’s appeal for lack of jurisdiction.
No costs.

FedCir, Informal 1151 claims, Mansfield v. Peake, No. 2007-7282

Cook v. Principi, 318 F.3d 1334, 1352-53 (Fed. Cir. 2002) (en banc) (Gajarsa, J., dissenting) (arguing that an applicant for veterans’ benefits possesses a property interest of sufficient magnitude to invoke the protection of due process).
++++++++++++++++++++++++++++++++++++++++++++++

Informal claims for section 1151 benefits, however, are processed differently.
The VA still takes the first step of determining whether an “informal claim” has been filed under the standard set forth in 38 C.F.R. § 3.154, discussed above. However, 38 C.F.R. § 3.150(c)-titled “Forms to be furnished”-provides that the VA will not commence the second step of forwarding a formal application form to the veteran for completion, where the veteran is applying for section 1151 benefits. Thus, while the veteran is not required to submit a “specific application” for section 1151 benefits, 38 C.F.R. § 3.150(c), the veteran’s submission must nevertheless satisfy the standard for an “informal claim” set forth in 38 C.F.R. § 3.154.


++++++++++++++++++++++++++++++++++++++++++++++

38 C.F.R. § 3.154 in 2004. The new regulation provides:
VA may accept as a claim for benefits under 38 U.S.C. 1151 . . . any communication in writing indicating an intent to file a claim for disability compensation . . . under the laws governing entitlement to veterans’ benefits for disability or death due to VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, whether such communication is contained in a formal claim . . . or in any other document.
38 C.F.R. § 3.154 (2004) (emphasis added).

++++++++++++++++++++++++++++++++++++++++++++++

Generally, an informal claim for VA benefits is processed in two steps. First, the VA determines whether the veteran’s submission satisfies the standard for an informal claim-i.e., whether the communication “indicat[es] an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs.” 38 C.F.R. § 3.155(a) (1990). Second, upon receipt of an informal claim, the VA forwards a formal application form to the veteran. Id. If the veteran subsequently submits the form within one year, the veteran’s formal claim will be deemed to have been received as of the date of receipt of the informal claim. Id.

++++++++++++++++++++++++++++++++++++++++++++++

United States Court of Appeals for the Federal Circuit
2007-7282
JACK R. MANSFIELD, SR.,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Robert P. Walsh, of Battle Creek, Michigan, argued for claimant-appellant.
David A. Harrington, 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 Jeffrey S. Bucholtz, Acting Assistant Attorney
General; Jeanne E. Davidson, Director; and Martin F. Hockey, Jr., Assistant Director.
Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel,
United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Lawrence B. Hagel.

United States Court of Appeals for the Federal Circuit
2007-7282
JACK R. MANSFIELD, SR.,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 05-1165, Judge
Lawrence B. Hagel.
_________________________
DECIDED: May 12, 2008
_________________________
Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and SCHALL,
Circuit Judge.
SCHALL, Circuit Judge.
Jack R. Mansfield, Sr. appeals the decision of the United States Court of Appeals
for Veterans Claims (“Veterans Court”) that affirmed the decision of the Board of
Veterans’ Appeals (“Board”) that June 11, 1993 is the earliest effective date for Mr.
Mansfield’s award of Department of Veterans Affairs (“VA”) benefits under 38 U.S.C.
§ 1151. Mansfield v. Nicholson, No. 05-1165, 2007 WL 1599726 (Vet. App. May 16,
2007). Because the Veterans Court did not err in its determination that Mr. Mansfield’s.1991 negligence claim under the Federal Tort Claims Act (“FTCA”) did not form the
basis for an earlier effective date, we affirm.
BACKGROUND
I.
In March 1989, Mr. Mansfield underwent gallbladder surgery at a Department of
Veterans Affairs medical facility. His bowel was perforated during the surgery, which
resulted in various postoperative complications and procedures, including a permanent
colostomy. Mr. Mansfield subsequently elected to pursue a claim for negligence under
the FTCA. See 28 U.S.C. § 1346(b)(1) (1988). On January 3, 1991, he submitted to
the VA a Standard Form 95 (“SF-95”), seeking $500,000 in compensation for his
injuries.1 Mr. Mansfield’s wife also submitted an SF-95, claiming $250,000 for her loss
of services and consortium. When the Mansfields’ claims were not resolved
administratively, they initiated suit in the United States District Court for the Eastern
District of Michigan, seeking a combined total recovery of $750,000 under the FTCA.
The Mansfields eventually settled their claims for a total of $164,471.22 ($125,000 for
the Mansfields and $39,471.22 for their attorney). Accordingly, the district court
dismissed the case with prejudice on February 17, 1993.
Upon settlement, Mr. Mansfield’s VA claims file was transferred to the VA Central
Office located in Washington, D.C. On June 11, 1993, J. Gary Hickman, the VA’s
Director of Compensation and Pension Services, sent a letter to the VA Regional Office
in Detroit, Michigan. The letter explained that Mr. Mansfield’s negligence claim had
1 Mr. Mansfield was required, under 28 U.S.C. § 2675(a), to present his
claim to the VA before initiating suit under the FTCA. A claimant may satisfy the
requirements of section 2675(a) by submitting an SF-95. See 28 C.F.R. § 14.2(a)
(1990).
2007-7282 2.been settled and that, pursuant to 38 C.F.R. § 3.800(a)(2), any award of VA benefits
based on the same disability was subject to offset by the amount of the settlement. The
letter further stated:
Review of the claims folder reveals a claim for benefits has been filed
which meets the requirements of 38 CFR § 3.154. Accordingly,
development should be undertaken . . . . Upon completion of the required
development, the material received, together with the claims folder, should
be referred to the rating board for a decision as to entitlement to benefits
under 38 U.S.C. § 1151. . . .
The record does not reflect that the VA Regional Office took any action with respect to
this letter.
II.
On October 5, 2000, Mr. Mansfield submitted a Form 21-4138 (“Statement in
Support of Claim”) to the VA. On that form, he claimed entitlement to VA benefits for
the permanent colostomy he endured as a result of his March 1989 surgery. The VA
granted Mr. Mansfield’s request for benefits pursuant to 38 U.S.C. § 1151. In general
terms, section 1151 provides that veterans disabled as a result of negligent treatment at
VA medical facilities shall be compensated as if their disabilities are service-connected.
See 38 U.S.C. § 1151(a) (2000).2 The VA assigned an effective date of October 13,
2000 for Mr. Mansfield’s disability, which corresponded to the date Mr. Mansfield’s Form
21-4138 was received.3 In addition, however, the VA notified Mr. Mansfield that his
2 Accord 38 U.S.C. § 351 (1988). 3 Because Mr. Mansfield did not file a claim within one year of his injury, the
effective date of his award is the date on which his “claim” for VA benefits was received.
See 38 U.S.C. §§ 5110(a), (c) (2000); 38 C.F.R. § 3.400(i) (2007); accord 38 U.S.C.
§§ 3010(a), (c) (1988); 38 C.F.R. § 3.400(i) (1990).
2007-7282 3.monthly checks would be withheld until an amount equaling his FTCA settlement had
been recovered. See 38 U.S.C. § 1151(b) (2000); 38 C.F.R. § 3.800(a)(2) (2007).4
Mr. Mansfield subsequently appealed to the Board, arguing for an earlier
effective date. Among other things, he contended that his January 3, 1991 SF-95
submission constituted an informal claim for section 1151 benefits. In order to
determine whether Mr. Mansfield’s SF-95 constituted a claim for section 1151 benefits,
the Board turned to the governing VA regulation, which provided:
A formal claim for pension, compensation, dependency and indemnity
compensation or any statement in a communication showing an intent to
file a claim for disability or for death benefits resulting from the pursuit of a
course of vocational rehabilitation, hospitalization, medical or surgical
treatment, or examination under Department of Veterans Affairs laws may
be accepted as a claim.
38 C.F.R. § 3.154 (2002) (emphasis added).5 Under this standard, the Board
concluded that Mr. Mansfield’s SF-95 submission did not constitute a claim for section
1151 benefits. That was because his SF-95 did not contain an expression of intent to
apply for such benefits. Rather, the SF-95 merely indicated Mr. Mansfield’s intent to file
a claim for tort damages, which, the Board reasoned, was quite different from a claim
for VA benefits.
Notwithstanding its conclusion with respect to the SF-95, the Board determined
that Mr. Mansfield was entitled to an effective date earlier than October 13, 2000—the
effective date that had been assigned by the VA. The basis for that earlier effective
date was the Director’s June 11, 1993 letter. The Board was unable to reconcile its
conclusion that there was no document in the record satisfying the requirements of 38
4 Accord 38 U.S.C. § 351 (1988); 38 C.F.R. § 3.800(a)(2) (1990). 5 The Board cited the 2002 version of 38 C.F.R. § 3.154. However,
because section 3.154 remained unchanged from 1962 to 2004, the 2002 version cited
by the Board reflects the language in effect during the relevant time period in this case.
2007-7282 4.C.F.R. § 3.154 with the Director’s contrary statement, recited above, that “[r]eview of the
claims folder reveals a claim for benefits has been filed which meets the requirements
of 38 CFR § 3.154.” The Board stated: “In the absence of any means for reconciling the
conflict, the Board must find that the evidence of record with respect to the question of
whether a claim was in fact of record in June 1993 is in relative equipoise and that the
benefit of the doubt must be resolved in favor of the veteran.” The Board therefore held
that Mr. Mansfield’s claim for section 1151 benefits was entitled to an effective date of
June 11, 1993.
After initially remanding the case to the Board for additional explanation, the
Veterans Court affirmed. The court agreed with the Board’s conclusion that Mr.
Mansfield’s SF-95 did not constitute a claim for section 1151 benefits and that he was
therefore not entitled to an effective date of January 3, 1991. Mansfield, 2007 WL
1599726, at *3. The court disagreed, however, with the Board’s determination that Mr.
Mansfield was entitled to an effective date of June 11, 1993 based upon the Director’s
letter. Id. at *4. The court stated that “the proper effective date for Mr. Mansfield’s
award of VA benefits is October 3, 2000,” since no document in the record could
constitute a claim for VA benefits until that date. Id. Nevertheless, the court explained
that it would not disturb the effective date assigned by the Board because the error
resulted in a benefit to Mr. Mansfield. Id. This appeal followed. We have jurisdiction
over the appeal pursuant to 38 U.S.C. § 7292.
2007-7282 5.DISCUSSION
I.
On appeal, Mr. Mansfield presents two arguments. He first contends that the
Board and Veterans Court erred in denying an effective date of January 3, 1991. He
argues that, under a correct interpretation of the relevant VA regulations, the
submission of an SF-95 notifying the VA of a negligence claim under the FTCA
constitutes an informal claim for section 1151 benefits. Second, Mr. Mansfield argues
that the VA’s delay with respect to developing his claim for section 1151 benefits,
despite the Director’s instruction to do so, amounted to a denial of due process.
Our authority to review decisions of the Veterans Court is governed by statute.
Pursuant to 38 U.S.C. § 7292(c), we have “exclusive jurisdiction to review and decide
any challenge to the validity of any statute or regulation or any interpretation thereof
brought under this section, and to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” However, “[e]xcept to the extent that an
appeal under this chapter presents a constitutional issue, [we] may not review (A) a
challenge to a factual determination, or (B) a challenge to a law or regulation as applied
to the facts of a particular case.” 38 U.S.C. § 7292(d)(2) (2000). Mr. Mansfield’s
arguments plainly invoke our jurisdiction under section 7292. His first contention relates
to the interpretation of VA regulations; his second presents a constitutional issue. We
address each of these, in turn.
II.
We first address Mr. Mansfield’s argument that, under VA regulations, the
submission of an SF-95 constitutes an informal claim for section 1151 benefits. He
2007-7282 6.specifically argues that, in concluding to the contrary, the Veterans Court failed to apply
38 C.F.R. § 3.150(c), which provides: “When disability or death is due to Department of
Veterans Affairs hospital treatment, training, medical or surgical treatment, or
examination, a specific application for benefits will not be initiated” (emphasis added).6
According to Mr. Mansfield, the import of this regulation is that claims for disability
benefits as a result of VA hospital care do not require the submission of any specific
application. He argues that his FTCA SF-95 submission put the VA on notice of his
core contention: that he was entitled to compensation for the injuries he sustained as a
result of his gallbladder surgery. In rejecting his SF-95 as an informal claim for section
1151 benefits, he contends, the Veterans Court disregarded the lenient standard set
forth in 38 C.F.R. § 3.150(c).
The government responds that the Veterans Court correctly determined that an
SF-95 cannot constitute a claim for section 1151 benefits.7 The government argues
that the mere submission of an SF-95, in connection with a claim for negligence under
the FTCA, does not satisfy the requirements of 38 C.F.R. § 3.154—the regulation that
sets forth the requirements for a “claim” for section 1151 benefits. Specifically, the
government contends that an SF-95 is not a “communication in writing indicating an
intent to file a claim for disability compensation . . . under the laws governing entitlement
to veterans’ benefits for disability or death due to VA hospital care . . . .” 38 C.F.R.
6 The quoted language reflects the current version of 38 C.F.R. § 3.150(c),
which has not been amended since 1965. 7 The government does not seek reversal of the Board’s determination that
Mr. Mansfield is entitled to an effective date of June 11, 1993 based upon the Director’s
letter.
2007-7282 7.§ 3.154 (2007) (emphasis added).8 The government highlights several differences
between the FTCA and the veterans’ benefits system, explaining that an injured veteran
has the option of pursuing either or both remedies. Thus, the government argues, there
is no reason to conclude that notice of an FTCA claim—in the form of an SF-95
submission—indicates an intent to apply for veterans’ benefits. According to the
government, 38 C.F.R. § 3.150(c) must be read together with 38 C.F.R. § 3.154 such
that, “while a specific application for section 1151 benefits will not be required, a claim
for section 1151 benefits must nevertheless demonstrate an intent to seek such
benefits.” Appellee’s Br. 20.
Both parties agree that the earliest effective date for Mr. Mansfield’s section
1151 benefits corresponds to the date on which his claim for section 1151 benefits was
received. They disagree, however, with respect to whether his SF-95 constitutes a
“claim” for section 1151 benefits. We agree with the government that, under VA
regulations in effect during the operative time period, an SF-95 does not constitute an
informal claim for section 1151 benefits—at least where it merely provides notice of a
veteran’s intent to pursue a claim under the FTCA.
We first note that Congress has provided the VA with authority to establish the
requirements for “claims” for veterans’ benefits.
A specific claim in the form prescribed by the Secretary [of Veterans
Affairs] . . . must be filed in order for benefits to be paid or furnished to any
individual under the laws administered by the Secretary.
8 The government cites the current version of 38 C.F.R. § 3.154, as
amended on August 3, 2004.
2007-7282 8.38 U.S.C. § 5101(a) (2000).9 In accordance with that authority, the VA promulgated 38
C.F.R. § 3.154, which governs “claims” for section 1151 benefits. The outcome of this
case is controlled by the language of 38 C.F.R. § 3.154 in effect when Mr. Mansfield
submitted his SF-95 on January 3, 1991:
A formal claim for pension, compensation, dependency and indemnity
compensation or any statement in a communication showing an intent to
file a claim for disability or for death benefits resulting from the pursuit of a
course of vocational rehabilitation, hospitalization, medical or surgical
treatment, or examination under Department of Veterans Affairs laws
may [10] be accepted as a claim.
38 C.F.R. § 3.154 (1990) (emphases added). Thus, Mr. Mansfield’s SF-95 did not
constitute a claim for section 1151 benefits unless it indicated “an intent to file a claim
for disability or for death benefits . . . under Department of Veterans Affairs laws.” For
the following reasons, we do not think that was the case.
The FTCA waives sovereign immunity for certain tort claims against the United
States. The FTCA is not specific to the Department of Veterans Affairs; rather, it
applies to a “personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office
or employment.” 28 U.S.C. § 1346(b)(1) (1988) (emphasis added). It is thus clear that
an SF-95 itself is not a “claim for disability or for death benefits . . . under Department of
9 Accord 38 U.S.C. § 3001(a) (1988). 10 The use of “may” instead of “will” could be interpreted to mean that the VA
has discretion to determine whether to accept a communication as a claim for benefits,
even where it otherwise meets the requirements of 38 C.F.R. § 3.154. See Stewart v.
Brown, 10 Vet. App. 15, 18 (1997). We do not reach that question in this appeal,
however, as the government here has simply argued that Mr. Mansfield’s SF-95 does
not meet the standard set forth in 38 C.F.R. § 3.154. Indeed, the government’s brief
even states that “under 38 C.F.R. § 3.154, VA will accept as a claim for benefits under
38 U.S.C. § 1151 ‘any communication in writing’ as long as the writing ‘indicat[es] an
intent to file a claim for disability compensation . . . under the laws governing entitlement
to veterans’ benefits.’” Appellee’s Br. 20 (emphasis added).
2007-7282 9.Veterans Affairs laws.” Nor, we think, does an SF-95 evidence an intent to file such a
claim. The FTCA and the veterans’ benefits system provide two distinct remedies. The
FTCA allows claimants to pursue adversarial tort claims against the government.
Absent settlement, claims under the FTCA are decided by federal district courts
applying state law. See 28 U.S.C. § 1346(b)(1). In contrast, section 1151 claims are
governed by the non-adversarial procedures that apply to claims for veterans’ benefits.
A claimant may elect to pursue either of these remedies, or even both. Nevertheless,
the manner in which each claim is resolved remains fundamentally different. Thus, we
do not think that an SF-95 providing notice of a tort claim against the VA reflects the
requisite “intent to file a claim for disability or for death benefits . . . under Department of
Veterans Affairs laws.”
Indeed, the VA emphasized the distinction between the two remedies when it
revised the language of 38 C.F.R. § 3.154 in 2004. The new regulation provides:
VA may accept as a claim for benefits under 38 U.S.C. 1151 . . . any communication in writing indicating an intent to file a claim for disability compensation . . . under the laws governing entitlement to veterans’ benefits for disability or death due to VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, whether such communication is contained in a formal claim . . . or in any other document.
38 C.F.R. § 3.154 (2004) (emphasis added). The VA explained that the phrase “under
the laws governing entitlement to veterans’ benefits” was intended to clarify that claims
under the FTCA do not constitute claims for section 1151 benefits. See Department of
Veterans Affairs Remarks Accompanying 2004 Revision of Section 3.154, 69 Fed. Reg.
46,426, 46,427 (Aug. 3, 2004). The VA further stated:
Because a claimant has the option of pursuing a tort claim without
simultaneously pursuing a section 1151 claim, we do not believe that a
claim submitted to VA seeking damages under the Federal Tort Claims

2007-7282 10.

Act should routinely be construed by VA as a claim for benefits under 38 U.S.C. 1151 . . . . Accordingly, we believe it is appropriate to provide that a claim will be construed as a claim for benefits under 38 U.S.C. 1151 . . .
only if the veteran intended to seek those benefits as distinguished from monetary damages under the Federal Tort Claims Act.Id. These statements by the VA are consistent with our interpretation of the prior version of 38 C.F.R. § 3.154.
We do not agree with Mr. Mansfield that 38 C.F.R. § 3.150(c), which provides that “a specific application for benefits will not be initiated,” compels a different result.
Generally, an informal claim for VA benefits is processed in two steps. First, the VA determines whether the veteran’s submission satisfies the standard for an informal
claim—i.e., whether the communication “indicat[es] an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs.” 38 C.F.R. § 3.155(a) (1990). Second, upon receipt of an informal claim, the VA forwards a formal application form to the veteran. Id. If the veteran subsequently submits the form within one year, the veteran’s formal claim will be deemed to have been received as of the date of receipt of the informal claim. Id.

Informal claims for section 1151 benefits, however, are processed differently.
The VA still takes the first step of determining whether an “informal claim” has been filed
under the standard set forth in 38 C.F.R. § 3.154, discussed above. However, 38
C.F.R. § 3.150(c)—titled “Forms to be furnished”—provides that the VA will not
commence the second step of forwarding a formal application form to the veteran for
completion, where the veteran is applying for section 1151 benefits. Thus, while the
veteran is not required to submit a “specific application” for section 1151 benefits, 38
C.F.R. § 3.150(c), the veteran’s submission must nevertheless satisfy the standard for
an “informal claim” set forth in 38 C.F.R. § 3.154.

2007-7282 11.

Nothing in the SF-95 that Mr. Mansfield filed with the VA indicates, or even
suggests, that he thereby was making a claim for veterans’ disability benefits. His only
claim on that form, which is captioned “CLAIM FOR DAMAGE, INJURY, OR DEATH,”
was for $500,000 for “PERSONAL INJURY.” The form further stated that “I . . . AGREE
TO ACCEPT [SAID] AMOUNT IN FULL SATISFACTION AND FINAL SETTLEMENT
OF THIS CLAIM.” This document is similar to the same form filed on the same day by
his wife, seeking $250,000 for “a loss of services and consortium.” The claim in Mr.
Mansfield’s SF-95 is the same claim made in his FTCA suit for the same amount he
filed several months later in the district court. The SF-95 was just what it purported to
be: the administrative agency claim seeking damages for tortious misconduct that is a
prerequisite to filing an FTCA suit based on the same conduct. It was not a claim for
veterans’ disability benefits.
III.
Next, we address Mr. Mansfield’s due process argument. In particular, he
contends that the VA’s delay in processing his claim for VA benefits amounted to a
denial of due process under the Fifth Amendment. However, even if Mr. Mansfield’s
entitlement to section 1151 benefits constituted a cognizable property interest,11 his
claim would fail. For the reasons stated above, Mr. Mansfield’s SF-95 was not a claim
for section 1151 benefits. In addition, the Veterans Court found as a factual matter that
Mr. Mansfield submitted no other document to the VA prior to his October 5, 2000
11 See Cook v. Principi, 318 F.3d 1334, 1352–53 (Fed. Cir. 2002) (en banc) (Gajarsa, J., dissenting) (arguing that an applicant for veterans’ benefits possesses a
property interest of sufficient magnitude to invoke the protection of due process). We,
of course, do not reach this question.

2007-7282 12.2007-7282 13

formal claim for section 1151 benefits.12 The VA promptly developed his claim and
issued a decision awarding benefits on May 15, 2001. Further, Mr. Mansfield has been
retroactively awarded benefits effective June 11, 1993. The present dispute only
concerns his entitlement to benefits for the period of January 3, 1991 to June 11, 1993.
With respect to the disputed benefits, Mr. Mansfield has been afforded a great deal of
process, including two Board decisions, two decisions of the Veterans Court, and this
appeal.
CONCLUSION
For the foregoing reasons, the decision of the Veterans Court affirming the
Board’s decision establishing June 11, 1993 as the earliest effective date for Mr.
Mansfield’s disability benefits under 38 U.S.C. § 1151 is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
12 Indeed, Mr. Mansfield admitted that he was not even aware—until he was
informed by his physician—that he could submit a claim for section 1151 benefits.
Thereafter, he filed his Form 21-4138 on October 5, 2000.

FedCir. Applicant for benefits and due process protection, Mansfield v. Peake, No. 2007-7282

Cook v. Principi, 318 F.3d 1334, 1352-53 (Fed. Cir. 2002) (en banc) (Gajarsa, J., dissenting) (arguing that an applicant for veterans’ benefits possesses a property interest of sufficient magnitude to invoke the protection of due process).
++++++++++++++++++++++++++++++++++++++++++++++

Informal claims for section 1151 benefits, however, are processed differently.
The VA still takes the first step of determining whether an “informal claim” has been filed under the standard set forth in 38 C.F.R. § 3.154, discussed above. However, 38 C.F.R. § 3.150(c)-titled “Forms to be furnished”-provides that the VA will not commence the second step of forwarding a formal application form to the veteran for completion, where the veteran is applying for section 1151 benefits. Thus, while the veteran is not required to submit a “specific application” for section 1151 benefits, 38 C.F.R. § 3.150(c), the veteran’s submission must nevertheless satisfy the standard for an “informal claim” set forth in 38 C.F.R. § 3.154.

++++++++++++++++++++++++++++++++++++++++++++++

38 C.F.R. § 3.154 in 2004. The new regulation provides:
VA may accept as a claim for benefits under 38 U.S.C. 1151 . . . any communication in writing indicating an intent to file a claim for disability compensation . . . under the laws governing entitlement to veterans’ benefits for disability or death due to VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, whether such communication is contained in a formal claim . . . or in any other document.
38 C.F.R. § 3.154 (2004) (emphasis added).
++++++++++++++++++++++++++++++++++++++++++++++

Generally, an informal claim for VA benefits is processed in two steps. First, the VA determines whether the veteran’s submission satisfies the standard for an informal claim-i.e., whether the communication “indicat[es] an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs.” 38 C.F.R. § 3.155(a) (1990). Second, upon receipt of an informal claim, the VA forwards a formal application form to the veteran. Id. If the veteran subsequently submits the form within one year, the veteran’s formal claim will be deemed to have been received as of the date of receipt of the informal claim. Id.

++++++++++++++++++++++++++++++++++++++++++++++

United States Court of Appeals for the Federal Circuit
2007-7282
JACK R. MANSFIELD, SR.,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Robert P. Walsh, of Battle Creek, Michigan, argued for claimant-appellant.
David A. Harrington, 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 Jeffrey S. Bucholtz, Acting Assistant Attorney
General; Jeanne E. Davidson, Director; and Martin F. Hockey, Jr., Assistant Director.
Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel,
United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Lawrence B. Hagel.

United States Court of Appeals for the Federal Circuit
2007-7282
JACK R. MANSFIELD, SR.,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 05-1165, Judge
Lawrence B. Hagel.
_________________________
DECIDED: May 12, 2008
_________________________
Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and SCHALL,
Circuit Judge.
SCHALL, Circuit Judge.
Jack R. Mansfield, Sr. appeals the decision of the United States Court of Appeals
for Veterans Claims (“Veterans Court”) that affirmed the decision of the Board of
Veterans’ Appeals (“Board”) that June 11, 1993 is the earliest effective date for Mr.
Mansfield’s award of Department of Veterans Affairs (“VA”) benefits under 38 U.S.C.
§ 1151. Mansfield v. Nicholson, No. 05-1165, 2007 WL 1599726 (Vet. App. May 16,
2007). Because the Veterans Court did not err in its determination that Mr. Mansfield’s.1991 negligence claim under the Federal Tort Claims Act (“FTCA”) did not form the
basis for an earlier effective date, we affirm.
BACKGROUND
I.
In March 1989, Mr. Mansfield underwent gallbladder surgery at a Department of
Veterans Affairs medical facility. His bowel was perforated during the surgery, which
resulted in various postoperative complications and procedures, including a permanent
colostomy. Mr. Mansfield subsequently elected to pursue a claim for negligence under
the FTCA. See 28 U.S.C. § 1346(b)(1) (1988). On January 3, 1991, he submitted to
the VA a Standard Form 95 (“SF-95”), seeking $500,000 in compensation for his
injuries.1 Mr. Mansfield’s wife also submitted an SF-95, claiming $250,000 for her loss
of services and consortium. When the Mansfields’ claims were not resolved
administratively, they initiated suit in the United States District Court for the Eastern
District of Michigan, seeking a combined total recovery of $750,000 under the FTCA.
The Mansfields eventually settled their claims for a total of $164,471.22 ($125,000 for
the Mansfields and $39,471.22 for their attorney). Accordingly, the district court
dismissed the case with prejudice on February 17, 1993.
Upon settlement, Mr. Mansfield’s VA claims file was transferred to the VA Central
Office located in Washington, D.C. On June 11, 1993, J. Gary Hickman, the VA’s
Director of Compensation and Pension Services, sent a letter to the VA Regional Office
in Detroit, Michigan. The letter explained that Mr. Mansfield’s negligence claim had
1 Mr. Mansfield was required, under 28 U.S.C. § 2675(a), to present his
claim to the VA before initiating suit under the FTCA. A claimant may satisfy the
requirements of section 2675(a) by submitting an SF-95. See 28 C.F.R. § 14.2(a)
(1990).
2007-7282 2.been settled and that, pursuant to 38 C.F.R. § 3.800(a)(2), any award of VA benefits
based on the same disability was subject to offset by the amount of the settlement. The
letter further stated:
Review of the claims folder reveals a claim for benefits has been filed
which meets the requirements of 38 CFR § 3.154. Accordingly,
development should be undertaken . . . . Upon completion of the required
development, the material received, together with the claims folder, should
be referred to the rating board for a decision as to entitlement to benefits
under 38 U.S.C. § 1151. . . .
The record does not reflect that the VA Regional Office took any action with respect to
this letter.
II.
On October 5, 2000, Mr. Mansfield submitted a Form 21-4138 (“Statement in
Support of Claim”) to the VA. On that form, he claimed entitlement to VA benefits for
the permanent colostomy he endured as a result of his March 1989 surgery. The VA
granted Mr. Mansfield’s request for benefits pursuant to 38 U.S.C. § 1151. In general
terms, section 1151 provides that veterans disabled as a result of negligent treatment at
VA medical facilities shall be compensated as if their disabilities are service-connected.
See 38 U.S.C. § 1151(a) (2000).2 The VA assigned an effective date of October 13,
2000 for Mr. Mansfield’s disability, which corresponded to the date Mr. Mansfield’s Form
21-4138 was received.3 In addition, however, the VA notified Mr. Mansfield that his
2 Accord 38 U.S.C. § 351 (1988). 3 Because Mr. Mansfield did not file a claim within one year of his injury, the
effective date of his award is the date on which his “claim” for VA benefits was received.
See 38 U.S.C. §§ 5110(a), (c) (2000); 38 C.F.R. § 3.400(i) (2007); accord 38 U.S.C.
§§ 3010(a), (c) (1988); 38 C.F.R. § 3.400(i) (1990).
2007-7282 3.monthly checks would be withheld until an amount equaling his FTCA settlement had
been recovered. See 38 U.S.C. § 1151(b) (2000); 38 C.F.R. § 3.800(a)(2) (2007).4
Mr. Mansfield subsequently appealed to the Board, arguing for an earlier
effective date. Among other things, he contended that his January 3, 1991 SF-95
submission constituted an informal claim for section 1151 benefits. In order to
determine whether Mr. Mansfield’s SF-95 constituted a claim for section 1151 benefits,
the Board turned to the governing VA regulation, which provided:
A formal claim for pension, compensation, dependency and indemnity
compensation or any statement in a communication showing an intent to
file a claim for disability or for death benefits resulting from the pursuit of a
course of vocational rehabilitation, hospitalization, medical or surgical
treatment, or examination under Department of Veterans Affairs laws may
be accepted as a claim.
38 C.F.R. § 3.154 (2002) (emphasis added).5 Under this standard, the Board
concluded that Mr. Mansfield’s SF-95 submission did not constitute a claim for section
1151 benefits. That was because his SF-95 did not contain an expression of intent to
apply for such benefits. Rather, the SF-95 merely indicated Mr. Mansfield’s intent to file
a claim for tort damages, which, the Board reasoned, was quite different from a claim
for VA benefits.
Notwithstanding its conclusion with respect to the SF-95, the Board determined
that Mr. Mansfield was entitled to an effective date earlier than October 13, 2000—the
effective date that had been assigned by the VA. The basis for that earlier effective
date was the Director’s June 11, 1993 letter. The Board was unable to reconcile its
conclusion that there was no document in the record satisfying the requirements of 38
4 Accord 38 U.S.C. § 351 (1988); 38 C.F.R. § 3.800(a)(2) (1990). 5 The Board cited the 2002 version of 38 C.F.R. § 3.154. However,
because section 3.154 remained unchanged from 1962 to 2004, the 2002 version cited
by the Board reflects the language in effect during the relevant time period in this case.
2007-7282 4.C.F.R. § 3.154 with the Director’s contrary statement, recited above, that “[r]eview of the
claims folder reveals a claim for benefits has been filed which meets the requirements
of 38 CFR § 3.154.” The Board stated: “In the absence of any means for reconciling the
conflict, the Board must find that the evidence of record with respect to the question of
whether a claim was in fact of record in June 1993 is in relative equipoise and that the
benefit of the doubt must be resolved in favor of the veteran.” The Board therefore held
that Mr. Mansfield’s claim for section 1151 benefits was entitled to an effective date of
June 11, 1993.
After initially remanding the case to the Board for additional explanation, the
Veterans Court affirmed. The court agreed with the Board’s conclusion that Mr.
Mansfield’s SF-95 did not constitute a claim for section 1151 benefits and that he was
therefore not entitled to an effective date of January 3, 1991. Mansfield, 2007 WL
1599726, at *3. The court disagreed, however, with the Board’s determination that Mr.
Mansfield was entitled to an effective date of June 11, 1993 based upon the Director’s
letter. Id. at *4. The court stated that “the proper effective date for Mr. Mansfield’s
award of VA benefits is October 3, 2000,” since no document in the record could
constitute a claim for VA benefits until that date. Id. Nevertheless, the court explained
that it would not disturb the effective date assigned by the Board because the error
resulted in a benefit to Mr. Mansfield. Id. This appeal followed. We have jurisdiction
over the appeal pursuant to 38 U.S.C. § 7292.
2007-7282 5.DISCUSSION
I.
On appeal, Mr. Mansfield presents two arguments. He first contends that the
Board and Veterans Court erred in denying an effective date of January 3, 1991. He
argues that, under a correct interpretation of the relevant VA regulations, the
submission of an SF-95 notifying the VA of a negligence claim under the FTCA
constitutes an informal claim for section 1151 benefits. Second, Mr. Mansfield argues
that the VA’s delay with respect to developing his claim for section 1151 benefits,
despite the Director’s instruction to do so, amounted to a denial of due process.
Our authority to review decisions of the Veterans Court is governed by statute.
Pursuant to 38 U.S.C. § 7292(c), we have “exclusive jurisdiction to review and decide
any challenge to the validity of any statute or regulation or any interpretation thereof
brought under this section, and to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” However, “[e]xcept to the extent that an
appeal under this chapter presents a constitutional issue, [we] may not review (A) a
challenge to a factual determination, or (B) a challenge to a law or regulation as applied
to the facts of a particular case.” 38 U.S.C. § 7292(d)(2) (2000). Mr. Mansfield’s
arguments plainly invoke our jurisdiction under section 7292. His first contention relates
to the interpretation of VA regulations; his second presents a constitutional issue. We
address each of these, in turn.
II.
We first address Mr. Mansfield’s argument that, under VA regulations, the
submission of an SF-95 constitutes an informal claim for section 1151 benefits. He
2007-7282 6.specifically argues that, in concluding to the contrary, the Veterans Court failed to apply
38 C.F.R. § 3.150(c), which provides: “When disability or death is due to Department of
Veterans Affairs hospital treatment, training, medical or surgical treatment, or
examination, a specific application for benefits will not be initiated” (emphasis added).6
According to Mr. Mansfield, the import of this regulation is that claims for disability
benefits as a result of VA hospital care do not require the submission of any specific
application. He argues that his FTCA SF-95 submission put the VA on notice of his
core contention: that he was entitled to compensation for the injuries he sustained as a
result of his gallbladder surgery. In rejecting his SF-95 as an informal claim for section
1151 benefits, he contends, the Veterans Court disregarded the lenient standard set
forth in 38 C.F.R. § 3.150(c).
The government responds that the Veterans Court correctly determined that an
SF-95 cannot constitute a claim for section 1151 benefits.7 The government argues
that the mere submission of an SF-95, in connection with a claim for negligence under
the FTCA, does not satisfy the requirements of 38 C.F.R. § 3.154—the regulation that
sets forth the requirements for a “claim” for section 1151 benefits. Specifically, the
government contends that an SF-95 is not a “communication in writing indicating an
intent to file a claim for disability compensation . . . under the laws governing entitlement
to veterans’ benefits for disability or death due to VA hospital care . . . .” 38 C.F.R.
6 The quoted language reflects the current version of 38 C.F.R. § 3.150(c),
which has not been amended since 1965. 7 The government does not seek reversal of the Board’s determination that
Mr. Mansfield is entitled to an effective date of June 11, 1993 based upon the Director’s
letter.
2007-7282 7.§ 3.154 (2007) (emphasis added).8 The government highlights several differences
between the FTCA and the veterans’ benefits system, explaining that an injured veteran
has the option of pursuing either or both remedies. Thus, the government argues, there
is no reason to conclude that notice of an FTCA claim—in the form of an SF-95
submission—indicates an intent to apply for veterans’ benefits. According to the
government, 38 C.F.R. § 3.150(c) must be read together with 38 C.F.R. § 3.154 such
that, “while a specific application for section 1151 benefits will not be required, a claim
for section 1151 benefits must nevertheless demonstrate an intent to seek such
benefits.” Appellee’s Br. 20.
Both parties agree that the earliest effective date for Mr. Mansfield’s section
1151 benefits corresponds to the date on which his claim for section 1151 benefits was
received. They disagree, however, with respect to whether his SF-95 constitutes a
“claim” for section 1151 benefits. We agree with the government that, under VA
regulations in effect during the operative time period, an SF-95 does not constitute an
informal claim for section 1151 benefits—at least where it merely provides notice of a
veteran’s intent to pursue a claim under the FTCA.
We first note that Congress has provided the VA with authority to establish the
requirements for “claims” for veterans’ benefits.
A specific claim in the form prescribed by the Secretary [of Veterans
Affairs] . . . must be filed in order for benefits to be paid or furnished to any
individual under the laws administered by the Secretary.
8 The government cites the current version of 38 C.F.R. § 3.154, as
amended on August 3, 2004.
2007-7282 8.38 U.S.C. § 5101(a) (2000).9 In accordance with that authority, the VA promulgated 38
C.F.R. § 3.154, which governs “claims” for section 1151 benefits. The outcome of this
case is controlled by the language of 38 C.F.R. § 3.154 in effect when Mr. Mansfield
submitted his SF-95 on January 3, 1991:
A formal claim for pension, compensation, dependency and indemnity
compensation or any statement in a communication showing an intent to
file a claim for disability or for death benefits resulting from the pursuit of a
course of vocational rehabilitation, hospitalization, medical or surgical
treatment, or examination under Department of Veterans Affairs laws
may [10] be accepted as a claim.
38 C.F.R. § 3.154 (1990) (emphases added). Thus, Mr. Mansfield’s SF-95 did not
constitute a claim for section 1151 benefits unless it indicated “an intent to file a claim
for disability or for death benefits . . . under Department of Veterans Affairs laws.” For
the following reasons, we do not think that was the case.
The FTCA waives sovereign immunity for certain tort claims against the United
States. The FTCA is not specific to the Department of Veterans Affairs; rather, it
applies to a “personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office
or employment.” 28 U.S.C. § 1346(b)(1) (1988) (emphasis added). It is thus clear that
an SF-95 itself is not a “claim for disability or for death benefits . . . under Department of
9 Accord 38 U.S.C. § 3001(a) (1988). 10 The use of “may” instead of “will” could be interpreted to mean that the VA
has discretion to determine whether to accept a communication as a claim for benefits,
even where it otherwise meets the requirements of 38 C.F.R. § 3.154. See Stewart v.
Brown, 10 Vet. App. 15, 18 (1997). We do not reach that question in this appeal,
however, as the government here has simply argued that Mr. Mansfield’s SF-95 does
not meet the standard set forth in 38 C.F.R. § 3.154. Indeed, the government’s brief
even states that “under 38 C.F.R. § 3.154, VA will accept as a claim for benefits under
38 U.S.C. § 1151 ‘any communication in writing’ as long as the writing ‘indicat[es] an
intent to file a claim for disability compensation . . . under the laws governing entitlement
to veterans’ benefits.’” Appellee’s Br. 20 (emphasis added).
2007-7282 9.Veterans Affairs laws.” Nor, we think, does an SF-95 evidence an intent to file such a
claim. The FTCA and the veterans’ benefits system provide two distinct remedies. The
FTCA allows claimants to pursue adversarial tort claims against the government.
Absent settlement, claims under the FTCA are decided by federal district courts
applying state law. See 28 U.S.C. § 1346(b)(1). In contrast, section 1151 claims are
governed by the non-adversarial procedures that apply to claims for veterans’ benefits.
A claimant may elect to pursue either of these remedies, or even both. Nevertheless,
the manner in which each claim is resolved remains fundamentally different. Thus, we
do not think that an SF-95 providing notice of a tort claim against the VA reflects the
requisite “intent to file a claim for disability or for death benefits . . . under Department of
Veterans Affairs laws.”
Indeed, the VA emphasized the distinction between the two remedies when it
revised the language of 38 C.F.R. § 3.154 in 2004. The new regulation provides:
VA may accept as a claim for benefits under 38 U.S.C. 1151 . . . any communication in writing indicating an intent to file a claim for disability compensation . . . under the laws governing entitlement to veterans’ benefits for disability or death due to VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, whether such communication is contained in a formal claim . . . or in any other document.
38 C.F.R. § 3.154 (2004) (emphasis added). The VA explained that the phrase “under
the laws governing entitlement to veterans’ benefits” was intended to clarify that claims
under the FTCA do not constitute claims for section 1151 benefits. See Department of
Veterans Affairs Remarks Accompanying 2004 Revision of Section 3.154, 69 Fed. Reg.
46,426, 46,427 (Aug. 3, 2004). The VA further stated:
Because a claimant has the option of pursuing a tort claim without
simultaneously pursuing a section 1151 claim, we do not believe that a
claim submitted to VA seeking damages under the Federal Tort Claims

2007-7282 10.

Act should routinely be construed by VA as a claim for benefits under 38 U.S.C. 1151 . . . . Accordingly, we believe it is appropriate to provide that a claim will be construed as a claim for benefits under 38 U.S.C. 1151 . . .
only if the veteran intended to seek those benefits as distinguished from monetary damages under the Federal Tort Claims Act.Id. These statements by the VA are consistent with our interpretation of the prior version of 38 C.F.R. § 3.154.
We do not agree with Mr. Mansfield that 38 C.F.R. § 3.150(c), which provides that “a specific application for benefits will not be initiated,” compels a different result.
Generally, an informal claim for VA benefits is processed in two steps. First, the VA determines whether the veteran’s submission satisfies the standard for an informal
claim—i.e., whether the communication “indicat[es] an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs.” 38 C.F.R. § 3.155(a) (1990). Second, upon receipt of an informal claim, the VA forwards a formal application form to the veteran. Id. If the veteran subsequently submits the form within one year, the veteran’s formal claim will be deemed to have been received as of the date of receipt of the informal claim. Id.

Informal claims for section 1151 benefits, however, are processed differently.
The VA still takes the first step of determining whether an “informal claim” has been filed
under the standard set forth in 38 C.F.R. § 3.154, discussed above. However, 38
C.F.R. § 3.150(c)—titled “Forms to be furnished”—provides that the VA will not
commence the second step of forwarding a formal application form to the veteran for
completion, where the veteran is applying for section 1151 benefits. Thus, while the
veteran is not required to submit a “specific application” for section 1151 benefits, 38
C.F.R. § 3.150(c), the veteran’s submission must nevertheless satisfy the standard for
an “informal claim” set forth in 38 C.F.R. § 3.154.

2007-7282 11.

Nothing in the SF-95 that Mr. Mansfield filed with the VA indicates, or even
suggests, that he thereby was making a claim for veterans’ disability benefits. His only
claim on that form, which is captioned “CLAIM FOR DAMAGE, INJURY, OR DEATH,”
was for $500,000 for “PERSONAL INJURY.” The form further stated that “I . . . AGREE
TO ACCEPT [SAID] AMOUNT IN FULL SATISFACTION AND FINAL SETTLEMENT
OF THIS CLAIM.” This document is similar to the same form filed on the same day by
his wife, seeking $250,000 for “a loss of services and consortium.” The claim in Mr.
Mansfield’s SF-95 is the same claim made in his FTCA suit for the same amount he
filed several months later in the district court. The SF-95 was just what it purported to
be: the administrative agency claim seeking damages for tortious misconduct that is a
prerequisite to filing an FTCA suit based on the same conduct. It was not a claim for
veterans’ disability benefits.
III.
Next, we address Mr. Mansfield’s due process argument. In particular, he
contends that the VA’s delay in processing his claim for VA benefits amounted to a
denial of due process under the Fifth Amendment. However, even if Mr. Mansfield’s
entitlement to section 1151 benefits constituted a cognizable property interest,11 his
claim would fail. For the reasons stated above, Mr. Mansfield’s SF-95 was not a claim
for section 1151 benefits. In addition, the Veterans Court found as a factual matter that
Mr. Mansfield submitted no other document to the VA prior to his October 5, 2000
11 See Cook v. Principi, 318 F.3d 1334, 1352–53 (Fed. Cir. 2002) (en banc) (Gajarsa, J., dissenting) (arguing that an applicant for veterans’ benefits possesses a
property interest of sufficient magnitude to invoke the protection of due process). We,
of course, do not reach this question.

2007-7282 12.2007-7282 13

formal claim for section 1151 benefits.12 The VA promptly developed his claim and
issued a decision awarding benefits on May 15, 2001. Further, Mr. Mansfield has been
retroactively awarded benefits effective June 11, 1993. The present dispute only
concerns his entitlement to benefits for the period of January 3, 1991 to June 11, 1993.
With respect to the disputed benefits, Mr. Mansfield has been afforded a great deal of
process, including two Board decisions, two decisions of the Veterans Court, and this
appeal.
CONCLUSION
For the foregoing reasons, the decision of the Veterans Court affirming the
Board’s decision establishing June 11, 1993 as the earliest effective date for Mr.
Mansfield’s disability benefits under 38 U.S.C. § 1151 is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
12 Indeed, Mr. Mansfield admitted that he was not even aware—until he was
informed by his physician—that he could submit a claim for section 1151 benefits.
Thereafter, he filed his Form 21-4138 on October 5, 2000.