Veteranclaims’s Blog

April 12, 2009

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

Filed under: Informal 1151 claims; Mansfield; Peake; Cook v. Principi; — veteranclaims @ 7:21 pm

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.

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.