PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


KAY F. BUTLER, Individually and        
as Executor of the Estate of
Truman DeWayne Butler,
                Plaintiff-Appellant,
                                           No. 11-2408
                 v.
UNITED STATES OF AMERICA,
               Defendant-Appellee.
                                       
       Appeal from the United States District Court
 for the Middle District of North Carolina, at Greensboro.
          Thomas D. Schroeder, District Judge.
                (1:10-cv-00427-TDS-PTS)

                 Argued: October 24, 2012

                Decided: December 19, 2012

 Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.



Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Niemeyer and Judge Shedd concurred.


                         COUNSEL

ARGUED: Lewis M. Everett, EVERETT & EVERETT, Dur-
ham, North Carolina, for Appellant. Jason R. Cheek,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
2                  BUTLER v. UNITED STATES
ton, D.C., for Appellee. ON BRIEF: Jon P. McClanahan,
UNC SCHOOL OF LAW, Chapel Hill, North Carolina, for
Appellant. Stuart F. Delery, Acting Assistant Attorney Gen-
eral, Phyllis J. Pyles, Director, Torts Branch, Bridget Bailey
Lipscomb, Senior Trial Counsel, Torts Branch, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Ripley Eagles Rand, United States Attorney, Greensboro,
North Carolina, for Appellee.


                         OPINION

AGEE, Circuit Judge:

   Kay F. Butler ("Mrs. Butler"), individually and as executor
of the estate of her husband, Truman D. Butler ("Mr. Butler"),
appeals the district court’s dismissal of her action for wrong-
ful death and loss of consortium under the Federal Tort
Claims Act ("FTCA"), 28 U.S.C. § 1346. For the reasons set
forth below, we affirm the judgment of the district court.

                              I.

   On January 29, 2004, Mr. Butler, a veteran of the armed
forces, was examined at the Veterans Administration Medical
Center in Durham, North Carolina ("Durham VA") for evalu-
ation of a thoracic aortic aneurysm. Dr. Jonathan Gray ("Dr.
Gray"), who was employed as a vascular surgeon at the Dur-
ham VA, determined that surgery was required. The surgery
was performed at Duke University hospital by Dr. Gray and
Dr. Robert Messier.

   In the immediate post-operative period, Mr. Butler was dis-
covered to be paralyzed from the chest down. He began to
experience acute renal failure, pulmonary edema, and conges-
tive heart failure. His left leg later had to be amputated and
he was eventually transferred to the Veterans Administration
                   BUTLER v. UNITED STATES                    3
Medical Center in Richmond, Virginia ("Richmond VA").
Mr. Butler later developed sepsis and died on March 15,
2005.

   In April 2005, Mrs. Butler filed a claim for dependency and
indemnity compensation benefits with the Department of Vet-
erans Affairs ("VA"), pursuant to 38 U.S.C. § 1151
("§ 1151"). This statute provides for disability payments from
the VA if claimants can show that disability or death was

    caused by hospital care, medical or surgical treat-
    ment, or examination furnished the veteran . . . in a
    [VA] facility . . . and the proximate cause of the dis-
    ability or death was . . . carelessness, negligence,
    lack of proper skill, error in judgment, or similar
    instance of fault on the part of the [VA] in furnishing
    the hospital care, medical or surgical treatment, or
    examination; or . . . an event not reasonably foresee-
    able.

38 U.S.C. § 1151(a)(1).

   The VA issued a Rating Decision on April 9, 2008 ("Rating
Decision"). The Rating Decision reviewed the claim submit-
ted by Mrs. Butler and noted that the responses from the Dur-
ham VA and the Richmond VA gave "very little detail" and
did not address any of the "specific points of contention."
(J.A. 31.) The Rating Decision also referred to three expert
reports which "pointed out in detail how the standards of care
were not followed and why the way the surgery was per-
formed was questionable." (J.A. 31.) Based on the evidence
presented, the VA resolved all reasonable doubts in Mrs. But-
ler’s favor and concluded that she was entitled to an award of
benefits under § 1151. See 38 U.S.C. § 5107(b) ("When there
is an approximate balance of positive and negative evidence
regarding any issue material to the determination of a matter,
the Secretary shall give the benefit of the doubt to the claim-
ant."); 38 C.F.R. § 3.102 ("When, after careful consideration
4                      BUTLER v. UNITED STATES
of all procurable and assembled data, a reasonable doubt
arises . . . such doubt will be resolved in favor of the claim-
ant.").

   Mrs. Butler then filed a complaint under the FTCA on June
2, 2010, in the Middle District of North Carolina alleging
claims for wrongful death and loss of consortium against the
United States ("the Government"). She alleged, inter alia, that
the pre-surgical, surgical, and post-surgical medical care that
Mr. Butler received was "not in accordance with the standards
of practice among members of the health care profession with
similar training and experience." (J.A. 10.)

   Mrs. Butler moved for judgment on the pleadings, arguing
that under 38 U.S.C. § 511 ("§ 511") the district court was
bound by decisions of law and fact made by the VA during
the benefits claim adjudication and consequently the "Court
does not have the authority or jurisdiction to review or over-
rule those decisions." (J.A. 28.)1 Contending that the findings
in the Rating Decision were binding on the district court, Mrs.
Butler averred those findings conclusively established liability
for negligence on behalf of the Government for FTCA pur-
poses. She represented to the district court that she would
therefore not present any expert witness testimony at a trial on
the merits. In Mrs. Butler’s view, expert testimony was
unnecessary in order to prove negligence or causation because
the binding effect of the Rating Decision under § 511 estab-
lished those essential elements of her causes of action.

   In response, the Government moved for summary judgment
"because no genuine issue of material fact exists since Plain-
tiff has admitted . . . she will not call any expert witnesses to
prove her medical malpractice case." (J.A. 34.) The Govern-
ment cited, in support, the requirement under North Carolina
    1
    Section 511 provides in pertinent part that "the decision of the Secre-
tary as to any such question shall be final and conclusive and may not be
reviewed by any other official or by any court." 38 U.S.C. § 511(a).
                      BUTLER v. UNITED STATES                        5
law in a medical malpractice action "to present expert testi-
mony to establish the standard of care and causation." (J.A.
34.) Further, the Government demurred to Mrs. Butler’s con-
tention that a Rating Decision under § 1151 had preclusive
effect in a separate FTCA action by virtue of § 511 because
"federal district courts have exclusive jurisdiction over FTCA
claims and . . . no other entity may make binding determina-
tions necessary to the liability of the government in a FTCA
action." (J.A. 46.)

   The magistrate judge issued a Recommendation to deny
Mrs. Butler’s motion for judgment on the pleadings and to
grant the Government’s motion for summary judgment.2 In
the Recommendation, the magistrate judge reasoned that
because the claims asserted by Mrs. Butler in her FTCA suit
were unrelated to the previous award of VA benefits, § 511
was inapplicable and did not deprive the district court of juris-
diction or preclude the court from making its own findings of
fact and conclusions of law. The magistrate judge further rec-
ommended that summary judgment be granted to the Govern-
ment because the medical injury in question was outside of
the knowledge and experience of a layperson, and expert testi-
mony was required to prove the standard of care and causa-
tion under North Carolina law, the applicable law for FTCA
purposes.

  Mrs. Butler filed objections to the magistrate judge’s Rec-
ommendation and the Government filed a response. On Octo-
ber 31, 2011, the district court entered an order adopting the
magistrate judge’s Recommendation, granting the Govern-
ment’s motion for summary judgment, and dismissing the
case.

  Mrs. Butler noted a timely appeal, and we have jurisdiction
under 28 U.S.C. § 1291.
  2
    The motions were referred to the magistrate judge for a recommenda-
tion for disposition pursuant to 28 U.S.C. § 636(b).
6                   BUTLER v. UNITED STATES
                               II.

   We review de novo the district court’s ruling on a motion
for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c), and in doing so, apply the standard for
a Rule 12(b)(6) motion. Edwards v. City of Goldsboro, 

, 243 (4th Cir. 1999). "The purpose of a Rule
12(b)(6) motion is to test the sufficiency of a complaint;
‘importantly, [a Rule 12(b)(6) motion] does not resolve con-
tests surrounding the facts, the merits of a claim, or the appli-
cability of defenses.’" 

v.
Martin, 

, 952 (4th Cir. 1992) (alteration in origi-
nal)).

  We review the district court’s grant of summary judgment
de novo, applying the same standard as the district court. See
Nat’l City Bank of Ind. v. Turnbaugh, 

, 329 (4th
Cir. 2006). Summary judgment is appropriate "if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).

                              III.

   The central issue Mrs. Butler raises on appeal is whether
the district court erred in denying her motion for judgment on
the pleadings. She contends 38 U.S.C. § 511 precluded the
district court from making independent findings of fact or law
as to her FTCA claims because the statute makes the conclu-
sions of the Rating Decision binding in any other proceeding.
As a consequence, Mrs. Butler argues that the VA’s findings
in the Rating Decision establish all that is necessary for her
to prove the Government’s liability for negligence and causa-
tion in her FTCA action. We disagree.

    Section 511 provides in pertinent part:

      The Secretary [of Veterans Affairs] shall decide all
      questions of law and fact necessary to a decision by
                        BUTLER v. UNITED STATES                             7
      the Secretary under a law that affects the provision
      of benefits by the Secretary to veterans or the depen-
      dents or survivors of veterans. Subject to subsection
      (b), the decision of the Secretary as to any such
      question 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).3 Mrs. Butler contends
that this statutory language should be construed as a bar to
any court which might consider the same facts in any pro-
ceeding from reaching a conclusion contrary to the Rating
Decision. Although § 511 provides that the decision of the
VA as to "any such question" is final and conclusive, the
"question" referred to is limited only to those "necessary to a
decision by the Secretary under a law that affects the provi-
sion of benefits by the Secretary to veterans or the dependents
or survivors of veterans." 

Butler’s
reading ignores the plain language of the statute and the clear
weight of judicial precedent.

   In a case with a virtually identical fact pattern to that of the
case at bar, the Ninth Circuit rejected the view Mrs. Butler
posits. In Littlejohn v. United States, 

, 919–24
(9th Cir.), cert. denied, 

(2003), the Ninth Circuit
held that a prior award of disability benefits by the VA did not
bar litigation of liability issues in a subsequent FTCA negli-
gence action.

   The Littlejohn plaintiff contended that FTCA liability was
established by the VA’s Rating Decisions under traditional
claim preclusion principles.4 

Ninth Circuit dis-
  3
     Subsection (b) lists four exceptions to this provision; however, the par-
ties agree none of the exceptions apply in this case.
   4
     Although Mrs. Butler conceded in the district court that neither claim
preclusion nor issue preclusion applies in this case, that is, in effect, pre-
cisely what she seeks to accomplish here.
8                   BUTLER v. UNITED STATES
agreed, holding that the plaintiff’s claim preclusion argument
failed for two reasons: (1) the VA could not assert its FTCA
causation defense in the agency disability benefit proceed-
ings; and (2) "claim preclusion is incompatible with the statu-
tory purposes underlying the veterans’ disability and FTCA
statutory schemes." 

of his entitle-
ment to disability benefits," the Ninth Circuit saw "no way in
which a decision on the merits of [the plaintiff’s] FTCA claim
[amounted] to judicial review of the § 1151 proceedings." 

agree with the Ninth Circuit’s reasoning in Littlejohn:
the "questions" of law and fact to be given conclusive effect
under § 511(a), and to be subject to no further review by a
court, are only those which would affect the provision of the
benefits awarded by the VA. See 

.
Although § 511(a) provides that the decision of the VA as to
"any such question" is final and conclusive, the "question"
referred to is limited only to those "necessary to a decision by
the Secretary under a law that affects the provision of benefits
by the Secretary to veterans or the dependents or survivors of
veterans." 38 U.S.C. § 511(a) (emphasis added). Mrs. Butler
concedes that an adverse decision in her FTCA action will
have no impact on the validity of the benefits she received in
the award from the VA. This concession correctly recognizes
the terms of § 511 do not provide the preclusive effect that
she argues.

   Additionally, the cases upon which she relies lend no sup-
port for her position, but deal only with reviews of the validity
of the VA’s decision to award benefits under § 1151 and not
a separate claim for other damages in an action at law. The
FTCA proceeding is not a benefits determination or review of
the existing VA award. Nothing in the FTCA action will dis-
turb the finality of the VA award to her. See, e.g., Thomas v.
Principi, 

, 971, 974–75 (D.C. Cir. 2005) (hold-
ing that plaintiff was barred from using FTCA to challenge
claims based on an underlying denial of benefits but that the
                    BUTLER v. UNITED STATES                     9
district court did not lack jurisdiction to review claims unre-
lated to provision of benefits); Cole v. United States, 

, 1265 (11th Cir. 1988) (per curiam) (listing cases in
which courts have refused to engage in review of administra-
tion of benefits decisions); Wickline v. Brooks, 

,
1391 (4th Cir. 1971) (per curiam) (summarily affirming dis-
missal of veteran’s complaint which sought review of VA’s
denial of veteran’s claim for disability compensation).

  We also note that the case upon which Mrs. Butler relies in
making her supplemental argument pursuant to Federal Rule
of Appellate Procedure 28(j), Veterans for Common Sense v.
Shinseki, 

, 1023–26 (9th Cir. 2012) (en banc),
does not provide the authority for her position that she sug-
gests. Instead, that decision confirms the validity of the Little-
john analysis.

   In Shinseki, the court sought to articulate a clear standard
for evaluating jurisdiction when a party raises claims regard-
ing VA 

, 1025 (holding that
§ 511 precludes jurisdiction over "cases where adjudicating
veterans’ claims requires the district court to determine
whether the VA acted properly in handling a veteran’s request
for benefits" and "also to those decisions that may affect such
cases."). In addition to citing Littlejohn throughout, the Shin-
seki court specifically differentiated the distinctions between
§ 511 benefits claims and FTCA claims. 

("The FTCA specifically confers jurisdiction on federal dis-
trict courts to hear such claims. . . . We also noted [in Little-
john] that the VA had separate procedures for dealing with
FTCA claims." (internal citations omitted)).

   Mrs. Butler’s position is further refuted by the statutory
purposes embodied in § 1151 and the FTCA, which are
incompatible with giving preclusive effect for FTCA purposes
to decisions granting benefits under § 1151. Congress has
established a dual system which handles veterans’ benefits
and tort claims in distinct and separate manners. See Mans-
10                  BUTLER v. UNITED STATES
field v. Peake, 

, 1317 (Fed. Cir. 2008) ("The
FTCA and the veterans’ benefits system provide two distinct
remedies."). The dual system clearly provides that administra-
tive agency benefits determinations by the VA and tort claims
will take place in separate judicial forums. See 38 U.S.C.
§§ 511, 7292 (providing for exclusive jurisdiction in the Fed-
eral Circuit for limited review of VA disability determina-
tions); 28 U.S.C. § 1346(b)(1) (providing for district court
jurisdiction over FTCA claims). The FTCA allows claimants
to pursue adversarial tort claims against the government,
which are decided by federal district courts applying state
law. In contrast, § 1151 claims are governed by the non-
adversarial procedures within an administrative agency that
apply to claims for veterans’ benefits. The Ninth Circuit has
appropriately explained:

     This separation reflects the underlying purpose of
     § 1151 and the entire veterans’ benefit program,
     namely ensuring that veterans, who have put their
     lives at risk in defending our nation and its liberties,
     are treated fairly by the same government that has
     asked so much from them. At the same time, § 1151
     does not purport to make veterans whole, represent-
     ing a tension between equitable concerns and fiscal
     limitations.

     These underlying purposes explain the informal
     nature of § 1151 proceedings, along with the pro-
     ceedings’ low standard of proof and other claimant-
     friendly procedures. These purposes are also
     reflected in the limited benefits available to benefi-
     ciaries. Section 1151 provides a baseline of support
     for veterans, in contrast to the FTCA, which poten-
     tially allows veterans to be made whole when the
     government is at fault for their disabilities stemming
     from VA medical treatment.
                      BUTLER v. UNITED STATES                       11

(internal citations omitted). These
separate statutory schemes affirm the distinction between the
remedies, while managing the potential for a double recovery
through an offset.5 38 U.S.C. § 1151(b); see also United
States v. Brown, 

, 113 (1954) (FTCA and dis-
ability benefits are both available for veterans injured by VA
hospital treatment).

   The differences in the procedures established for § 1151
claims and FTCA claims offer another reason which requires
the rejection of Mrs. Butler’s argument. Compare 38 C.F.R.
§§ 14.600–.605 (FTCA procedures), with 38 C.F.R.
§§ 3.100–.115 (procedures for disability benefits claims). Sec-
tion 1151 benefits claims hearings are ex parte:

      Evidence presented in a § 1151 benefits hearing is
      limited to information presented by the claimant and
      certain types of information discovered by the VA.
      See 38 C.F.R. §§ 3.103, 3.159, 3.328. The VA is not
      authorized to develop evidence for the purpose of
      challenging the claimant, but rather is required to
      "assist a claimant in developing the facts pertinent to
      [his or her] claim." 38 C.F.R. § 3.103.

. This claimant-friendly system
does not provide the VA with any opportunity to raise a
defense as it would to a personal injury tort claim under the
FTCA. See 

("This conclusion is reinforced by
the separate administrative procedures set up by the VA to
deal with FTCA claims.").

  The burdens of proof in the two proceedings are also differ-
  5
   If Mrs. Butler had prevailed in her FTCA action, the § 1151 benefits
she currently receives would have been temporarily suspended "until the
aggregate amount of benefits which would be paid . . . equals the total
amount included in such judgment, settlement, or compromise." 38 U.S.C.
§ 1151(b).
12                  BUTLER v. UNITED STATES
ent. Under the FTCA, Mrs. Butler’s negligence claim is deter-
mined under North Carolina law. See 28 U.S.C. § 1346(b)(1);
FDIC v. Meyer, 

, 478 (1994). To establish negli-
gence in a North Carolina malpractice action, a plaintiff must
prove her case by a preponderance of the evidence. N.C. Gen.
Stat. § 90-21.12; Page v. Camp Mfg. Co., 

, 668
(N.C. 1920). In contrast, the VA’s disability benefits system
imposes a lower, almost de minimis burden of proof on claim-
ants, resolving reasonable doubts in the claimants’ favor
where "there is an approximate balance of positive and nega-
tive evidence." 38 U.S.C. § 5107(b); see also 38 C.F.R.
§ 3.102.

   In sum, because adjudication of Mrs. Butler’s FTCA claim
would not affect the validity of her VA benefits award, we
conclude that the district court did not err in holding that
§ 511 did not preclude the court from making independent
findings of fact and conclusions of law in Mrs. Butler’s FTCA
proceeding. Nor did the district court err in holding that there
were no genuine issues of material fact since Mrs. Butler con-
ceded that she would not call any expert witnesses to prove
her medical malpractice case, as required under North Caro-
lina law. As Mrs. Butler’s statutory claim under § 511 fails
and there is no claim as to material issues of disputed fact, the
district court did not err in granting summary judgment to the
Government.

                              IV.

   For the reasons set forth above, we find no error in the dis-
trict court’s decision to deny Mrs. Butler’s motion for judg-
ment on the pleadings, grant the Government’s motion for
summary judgment, and dismiss this case. Accordingly, that
judgment is

                                                   AFFIRMED.