Case: 13-14454   Date Filed: 09/30/2014   Page: 1 of 13


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14454
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 2:11-cv-00149-SPC-DNF



RICHARD S. MILBAUER,

                                                            Plaintiff-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (September 30, 2014)

Before TJOFLAT, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
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      Richard Milbauer, pro se, appeals the dismissal of his complaint, brought

against the United States for alleged negligence by the U.S. Department of

Veterans Affairs (“VA”). We affirm in part, vacate in part, and remand.

                                I. BACKGROUND

      In September 2005, Milbauer sought treatment at a VA medical center in

Brooklyn, New York (“the Brooklyn VA”), for injuries he had sustained to his

right shoulder in two work-related accidents at a construction site. Medical staff

recommended he receive an MRI to diagnose his injuries. Because of his

claustrophobia, Milbauer requested an “open” MRI, a type of MRI that does not

require the patient to be enclosed in a tube. The Brooklyn VA, however, did not

have an open MRI machine, and Milbauer requested authorization to receive an

open MRI at a non-VA facility. Milbauer finally obtained such authorization and

received an open MRI at a non-VA facility in July 2006, ten months after Brooklyn

VA medical staff had recommended the procedure. The MRI revealed Milbauer

had a severely torn rotator cuff, and he elected to have surgery. Because the

damage was too severe, the surgery was unsuccessful.

      On September 27, 2008, Milbauer filed an administrative claim with the VA

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671-

2680. He asserted the Brooklyn VA had failed to provide an open MRI of his right

shoulder in a timely manner. Although his doctor had recommended an MRI, the


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staff did not know how to arrange an MRI at a non-VA facility. Moreover, the

staff had placed upon him the burden of completing paperwork. He argued the

delay in receiving a timely MRI had caused further damage to his shoulder. He

also asserted his rotator cuff could have been repaired if the MRI had been

performed within 30 days after his injuries had occurred. The VA denied

Milbauer’s administrative claim on August 26, 2009.

       On March 17, 2011, Milbauer filed a complaint in the Middle District of

Florida and alleged negligence claims against the United States under the FTCA. 1

In his complaint, he summarized the medical treatment he had received at the

Brooklyn VA. He then alleged he was entitled to have an open MRI performed at

a non-VA facility at the VA’s expense, and he described the numerous problems

he had faced in attempting to obtain authorization for the outside MRI. Milbauer

alleged the Brooklyn VA medical staff had failed to return his telephone calls, had

directed him to departments that had no knowledge of how to arrange an open

MRI, and had failed to follow the procedures set forth in the VA’s New York

Harbor Healthcare System Policy No. 11-41 (“Policy No. 11-41”). According to

Milbauer, Policy No. 11-41 established the procedures for medical staff to order or

arrange medical tests and procedures performed at non-VA institutions.


       1
          Although the relevant events occurred in Brooklyn, New York, Milbauer currently
resides in Florida. The district judge denied the government’s motion to transfer venue to the
Eastern District of New York.
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      Milbauer further alleged the Brooklyn VA medical staff should have offered

alternative imaging studies to an MRI to determine the extent of his injury. He

claimed the medical staff had deviated from appropriate standards of medical care

and (1) had failed “to take reasonable steps to diagnose his rotator cuff injury

within a reasonable time frame through an outside MRI,” (2) had failed “to have

the appropriate paperwork prepared to authorize the outside MRI for a period of

ten months,” and (3) had committed “other negligent acts or omissions in violation

of the applicable standards of medical care.” R1-1 at 7-8.

      The government moved to dismiss the complaint under Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction. The government argued

Milbauer’s FTCA suit was barred by a provision in the Veterans Judicial Review

Act (“VJRA”), 28 U.S.C. § 511(a), which specifies that district judges may not

review claims involving a decision by the Secretary of the VA under a law that

affects the provision of benefits to veterans. The government argued the crux of

Milbauer’s claim concerned his frustration with the delay in obtaining a veteran’s

benefit, namely, authorization to have the VA pay for an open MRI at a non-VA

facility. The government further argued Milbauer had failed to exhaust

administratively his claim that medical staff should have offered him alternative

diagnostic imaging studies.




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         In response to the latter argument, Milbauer argued he administratively had

exhausted his claim that the Brooklyn VA should have offered alternative

diagnostic procedures. Relying on our precedent in Burchfield v. United States,

, 1255 (11th Cir. 1999), he argued he was not required to provide the

VA with every possible theory of recovery. Rather, he had to provide only enough

information to allow the agency to begin its own investigation, and he contended

the VA’s investigation should have revealed his alternative-diagnostic-procedures

claim.

         The district judge granted the government’s motion to dismiss. First, the

judge concluded, because Milbauer had not exhausted his administrative remedies

with respect to his alternative-diagnostic-procedures claim, she lacked jurisdiction

over that claim. Notably, the judge did not make any factual findings as to whether

the VA’s investigation of Milbauer’s claim should have revealed that theory of

liability, pursuant to Burchfield.

         As for Milbauer’s allegations regarding the delay in receiving authorization

for an open MRI, the judge concluded, although Milbauer’s allegations were

“couched in the language of tort law,” he essentially had presented a claim relating

to veterans’ benefits. R2-64 at 10. The judge found Milbauer’s grievance was

with the VA’s benefits procedure, not the medical treatment he received. Because

Milbauer had presented a claim for delay of veterans’ benefits, the judge found the


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VJRA precluded judicial review of that claim. The judge dismissed the case

without prejudice for lack of subject matter jurisdiction. Milbauer appealed.

                               II.    DISCUSSION

      We review de novo the dismissal of a complaint for lack of subject matter

jurisdiction. Motta ex rel. A.M. v. United States, 

, 843 (11th Cir.

2013).

A. Subject Matter Jurisdiction under the VJRA

      On appeal, Milbauer, pro se, argues the district judge erred by finding the

delay in his diagnosis was a benefits issue barred by the VJRA. He contends his

benefits were not in question; rather, his claim involved the delay of a medical

diagnosis due to medical professionals’ deviation from the standard of care.

      The VJRA provides the decision of the Secretary as to any “questions of law

and fact necessary to a decision by the Secretary under a law that affects the

provision of benefits . . . shall be final and conclusive and may not be reviewed by

any other official or by any court, whether by an action in the nature of mandamus

or otherwise.” 38 U.S.C. § 511(a) (emphasis added). The term “benefit” means

“any payment, service, commodity, function, or status, entitlement to which is

determined under laws administered by the Department of Veterans Affairs

pertaining to veterans and their dependents and survivors.” 38 C.F.R. § 20.3(e).




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       The VJRA does not completely eliminate judicial review of benefits

decisions. Rather, determinations of the Secretary may be appealed to the Board of

Veterans’ Appeals (“Board”), whose ruling becomes the final decision of the

Secretary. 38 U.S.C. § 7104(a). Decisions of the Board may then be reviewed

exclusively by the U.S. Court of Appeals for Veterans Claims, an Article I court

established by the VJRA. 

7252(a), 7266(a). Decisions of the Court of

Appeals for Veterans Claims are in turn appealable only to the U.S. Court of

Appeals for the Federal Circuit. 

(c). The judgment of the Federal

Circuit is then subject to review by the Supreme Court by writ of certiorari. 

      Accordingly, pursuant to the VJRA, “judicial review of a particular

application of the law made by the Secretary with respect to a veteran’s

entitlement to benefits may be had only by appealing to the Board, then to the

Court of Veterans Appeals, the Federal Circuit Court of Appeals and the Supreme

Court.” Hall v. U.S. Dep’t of Veterans Affairs, 

, 534 (11th Cir. 1996)

(per curiam) (emphasis added).

      We have analyzed the VJRA’s jurisdictional scheme in a published opinion

on only one occasion. In Hall, a veteran filed a complaint in district court after

receiving notification that his disability benefits had been reduced in accordance

with 38 C.F.R. § 3.665, which required disability compensation be diminished


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during periods of incarceration for certain felony convictions. 

The

veteran alleged the reduction in his disability benefits constituted a tort and

violated numerous constitutional provisions. 

He specifically requested

the district judge to find that 38 C.F.R. § 3.665 violated the Constitution. 

dismissed the complaint sua sponte for lack of subject matter jurisdiction

under the VJRA. 

we held the district judge lacked jurisdiction to

determine the constitutionality of § 3.665, because the VJRA precluded judicial

review of the Secretary’s decisions involving the interpretation or application of a

regulation governing veterans’ benefits. 

Essentially, we held a

plaintiff may not circumvent the VJRA’s jurisdictional limitations by cloaking a

benefits claim in constitutional terms. See 

not considered whether a claim alleging medical malpractice

actually concerns a benefits issue precluded by the VJRA. The D.C. Circuit,

however, has established a relevant test to determine this issue. In Thomas v.

Principi, a veteran filed suit in the district court and alleged the VA had committed

medical malpractice under the FTCA and had caused him intentional emotional

distress by failing to inform him of his “working diagnosis of schizophrenia.” 

, 972 (D.C. Cir. 2005). The D.C. Circuit held the VJRA did not preclude

judicial review of those FTCA claims, because the district judge could adjudicate

those claims “without determining first whether Thomas was entitled to a certain


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level of benefits.” 

(citation, internal quotation marks, and alteration

omitted). The D.C. Circuit also explained, “[b]ecause none of these claims alleges

that the VA failed to pay for treatment (or even to provide for treatment), they raise

no ‘questions of law or fact necessary to a decision by the Secretary under a law

that affects the provision of benefits.’” 

U.S.C. § 511) (alteration

omitted).

      The D.C. Circuit further acknowledged, however, that some of the plaintiff’s

claims were barred by the VJRA. 

The VJRA barred judicial review of

his claims that the VA had “failed to render the appropriate medical care services”

and that the VA’s “continuous and persistent deprivation and denial of known

needed and necessary medical care treatment . . . caused Plaintiff severe emotional

distress.” 

original). The court concluded the district judge lacked

jurisdiction over those claims, because adjudicating those claims would have

required the judge to decide whether the plaintiff was entitled to medical treatment

in the face of a prior VA determination that he was not entitled to such benefit. Id.;

see also Broudy v. Mather, 

, 115 (D.C. Cir. 2006) (explaining the

Thomas decision).

      In deciding Thomas, the D.C. Circuit relied on its earlier decision in Price v.

United States, 

, 422 (D.C. Cir. 2000) (per curiam). 

. In Price, the D.C. Circuit held the VJRA barred the district judge from


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considering a veteran’s claim for reimbursement of medical expenses, because in

order for the judge to resolve whether the VA had failed to reimburse the veteran,

it “would require the district court to determine first whether the VA acted properly

in handling [the veteran’s] request for reimbursement.” 

.

      In reviewing this issue, we must determine whether Milbauer’s claim

regarding the delay in his diagnosis alleged medical malpractice or raised a

veterans’ benefits issue. Milbauer alleged the VA failed “to take reasonable steps

to diagnose his rotator cuff injury within a reasonable time frame through an

outside MRI” and failed “to have the appropriate paperwork prepared to authorize

the outside MRI for a period of ten months.” R1-1 at 7-8. This is a benefits issue,

because Milbauer sought a particular benefit—to have the VA pay for an open

MRI performed at a non-VA facility—and he complained the process of obtaining

that benefit caused the delay in his diagnosis. See 38 C.F.R. § 20.3(e) (defining the

term “benefit”). Although the VA did not actually deny Milbauer’s request for an

outside MRI, we agree with the Eighth Circuit’s conclusion that “there is no

meaningful legal difference between a delay of benefits and an outright denial of

benefits” for purposes of the VJRA. Mehrkens v. Blank, 

, 870 (8th

Cir. 2009) (emphasis in original). Accordingly, the VJRA barred judicial review,

and the district judge correctly dismissed that claim for lack of subject matter

jurisdiction. 38 U.S.C. § 511(a).


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      Applying Thomas and Price to the facts of this case, we reach the same

conclusion. The district judge could not adjudicate Milbauer’s claim “without

determining first whether [Milbauer] was entitled to a certain level of benefits,”

namely, whether he was entitled to an outside MRI, paid for by the VA. 

(citation, internal quotation marks, and alteration omitted).

Furthermore, in order to adjudicate this claim, the judge would have to determine

whether the Brooklyn VA properly handled and processed Milbauer’s request to

have the VA pay for an open MRI at a non-VA facility. See 

. Specifically, the judge would be required to determine whether the Brooklyn

VA followed Policy No. 11-41 in processing Milbauer’s request. Thus, Milbauer

raised a benefits issue, not a medical-malpractice claim. Accordingly, we affirm

the dismissal of this claim for lack of subject matter jurisdiction under the VJRA.

B. Exhaustion of Administrative Remedies

      Milbauer also argues on appeal the district judge erred by dismissing his

claim regarding alternative diagnostic imaging, based on a failure to exhaust

administrative remedies. Relying on our decision in Burchfield, he contends he

provided ample information during the administrative stage to permit the VA’s

investigating attorneys to inquire why the VA had not ordered alternative tests.

      A district judge has jurisdiction over an FTCA claim only if the plaintiff has

(1) given the appropriate agency written notice of his claim, sufficient to enable the


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agency to investigate the claim; and (2) placed a value on his claim. 

. “[A] claimant must give an administrative agency only

enough information to allow the agency to begin its own investigation of the

alleged events and explore the possibility of settlement.” 

(citation and

internal quotation marks omitted). We do not require a claimant to provide an

agency with a preview of his lawsuit “by reciting every possible theory of recovery

or every factual detail that might be relevant.” 

Rather, the

amount of information required is “minimal.” 

internal quotation

marks omitted). Furthermore, an administrative agency is deemed to be on notice

not only of the theories of recovery stated in the claim, but of the theories of

recovery that its reasonable investigation of the specific allegations in the claim

should reveal. 

agency need not “undertake an independent

search for injuries or theories of liability that are not closely related to the matters

described in the claim.” 

      Milbauer argued in the district court, and reasserts on appeal, that he

presented enough information in his administrative complaint to place the VA on

notice of his claim regarding the failure to provide alternative diagnostic tools.

The district judge did not conduct any analysis, however, as to whether Milbauer

had provided sufficient information under Burchfield to overcome the FTCA’s bar

to unexhausted claims. Without additional findings from the district judge, we are


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unable to engage in meaningful appellate review of this issue. Danley v. Allen, 

, 1091 (11th Cir. 2007) (per curiam) (stating district judges’ orders

“should contain sufficient explanations of their rulings so as to provide this Court

with an opportunity to engage in meaningful appellate review”). Moreover,

although the government argues this claim is nevertheless barred by the VJRA, the

district judge did not make any factual findings as to that ultimate determination.

Accordingly, we remand for the district judge to analyze, in light of Burchfield,

whether Milbauer exhausted his alternative-diagnostic-procedures claim, and if so,

whether the VJRA precludes review of that claim.

      AFFIRMED IN PART, VACTED IN PART, AND REMANDED.




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