                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2750
                                    ___________

Allen Payne; Debra Payne,                *
                                         *
             Appellants,                 *
                                         * Appeal from the United States
      v.                                 * District Court for the Western
                                         * District of Missouri.
United States of America,                *
                                         *    [UNPUBLISHED]
             Appellee.                   *
                                    ___________

                           Submitted: March 7, 2003
                               Filed: March 18, 2003
                                    ___________

Before HANSEN, Chief Judge, MELLOY and SMITH, Circuit Judges.
                             ___________

PER CURIAM.

       Husband and wife Allen and Debra Payne appeal the district court’s dismissal
of their suit against the United States to recover disability benefits and tort damages
from the Department of Veterans Affairs (VA). The Paynes’ form complaint and
attachments present the allegations that Allen was exposed to Agent Orange while on
active duty in Vietnam; in 1989 a VA physician examined a rash that Allen had
developed and recommended only that Allen clean it with soap; in 1991 the VA ruled
that Allen’s skin condition was not connected to his military service; in 1998 a
private physician and another VA physician diagnosed Allen’s skin condition as
anetoderma; and in January 1999 and March 2000 the Paynes filed administrative
claims with the VA alleging that it had negligently failed to diagnose and treat
Allen’s anetoderma, which claims the VA rejected as untimely in May 2001.

       On the government’s motion, the district court dismissed the Paynes’ suit,
ruling that it lacked subject matter jurisdiction to review the denial of VA disability
benefits; that the Paynes’ tort claims were barred by the Federal Tort Claims Act’s
(FTCA’s) two-year statute of limitations, see 28 U.S.C. § 2401(b) (plaintiffs must file
claim with federal agency within 2 years of accrual of tort claim); and that the tort
claims were further barred by the Feres doctrine, see Feres v. United States, 340 U.S.
135, 146 (1950) (FTCA does not waive government’s sovereign immunity from
actions brought by military personnel which arise out of or in the course of activities
incident to military service).

       We review de novo the dismissal of the Paynes’ complaint for lack of subject
matter jurisdiction, see Bueford v. Resolution Trust Corp., 991 F.2d 481, 484 (8th
Cir. 1993), but review for clear error any findings of fact regarding subject matter
jurisdiction, see Appley Bros. v. United States, 164 F.3d 1164, 1170 (8th Cir. 1999).
To the extent the Paynes challenge the VA’s denial of disability benefits, we agree
that the district court lacked subject matter jurisdiction. See Hicks v. Veterans
Admin., 961 F.2d 1367, 1369-70 (8th Cir. 1992) (district court has no jurisdiction
over challenge to VA’s decision affecting benefits; such decisions can be reviewed
only in exclusive appellate review scheme established by Veterans Judicial Review
Act of 1988).

      However, the district court erred in dismissing the Paynes’ medical-malpractice
claims. The Paynes’ malpractice claims are not time-barred if, despite exercising
reasonable diligence, Allen did not discover the probable cause of his injury until
August 1998 when he was diagnosed by a private physician. See United States v.
Kubrick, 444 U.S. 111, 122-24 (1979) (FTCA claim for medical malpractice accrues
when plaintiff becomes aware of injury and its probable cause; plaintiff must exercise

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reasonable diligence in discovering injury and its probable cause); Osborn v. United
States, 918 F.2d 724, 732-34 (8th Cir. 1990) (FTCA action for malpractice accrued
for statute of limitations purposes when plaintiff learned from physicians that prior
medical treatment could have caused injury). The existing record does not establish
whether Allen exercised reasonable diligence in discovering the probable cause of his
injury, and this issue remains open on remand. In addition, because the VA’s
allegedly negligent failure to diagnose and treat Allen’s anetoderma occurred well
after he was discharged from active military service, his malpractice claim regarding
the VA doctors’ 1989-1990 diagnosis and treatment of his injury--unlike his claim
that he was injured by exposure to Agent Orange while on active duty in Vietnam
from 1967-1970--is not barred by Feres. See United States v. Brown, 348 U.S. 110,
110-12 (1954) (VA hospital’s negligence during operation on knee of discharged
veteran, which was injured during active military service, was not incident to military
service and thus not barred by Feres).

      Accordingly, we affirm the dismissal of the Paynes’ challenge to the VA’s
denial of their disability benefits, reverse the dismissal of their malpractice claims,
and remand for further proceedings.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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