                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
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                                  No. 01-1475
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James O. Vaughns,                        *
                                         *
            Appellant,                   *
                                         *      Appeal from the United States
      v.                                 *      District Court for the Eastern
                                         *      District of Arkansas.
United States of America; Veterans       *
Administration; Togo D. West, Jr.,       *      [UNPUBLISHED]
Secretary of Veterans Affairs,           *

            Appellees.

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                               Submitted: September 13, 2001
                                   Filed: October 10, 2001
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Before HANSEN and BEAM, Circuit Judges, and BOGUE,1 District Judge.
                        ________________

PER CURIAM.




      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
       James Vaughns appeals the district court's2 grant of summary judgment in favor
of the defendants in this Federal Tort Claims Act (FTCA) action. Vaughns is a
veteran of the United States Air Force, serving from 1966-1970. In 1969, while
stationed in what was then known as South Vietnam, Vaughns began to experience
severe acne. In 1973, after being honorably discharged, Vaughns sought treatment
for his skin condition at McClellan Memorial Veterans Hospital in Little Rock,
Arkansas. The hospital treated his skin condition with dapsone, but discontinued this
treatment after Vaughns experienced a side effect of the medication. The hospital
treated him with prednisone from 1973 to 1980 to ameliorate the secondary effect of
the dapsone treatment. On October 28, 1993, Vaughns underwent oral surgery at the
VA Medical Center in Dallas, Texas, to relieve pain, allegedly caused by the
prednisone, in his tempromandibular joint.

     On January 29, 1998, Vaughns filed an administrative claim with the
Department of Veterans Affairs (Department), alleging that the defendants had
committed medical malpractice by treating him with dapsone and prednisone. In an
amended claim, Vaughns also alleged that during the surgery on his
tempromandibular joint, the oral surgeon committed medical malpractice by severing
Vaughns' facial nerves. The Department denied Vaughns' administrative claim and
his motion for reconsideration. On October 29, 1999, Vaughns filed a pro se
complaint pursuant to the FTCA, asserting the same three claims.

       The district court dismissed the dapsone and prednisone claims for want of
jurisdiction, concluding that Vaughns had failed to timely present an administrative
claim to the appropriate federal agency before filing his FTCA action. See 28 U.S.C.
§ 2675(a) (1994) (providing that an "action shall not be instituted . . . against the
United States for money damages . . . unless the claimant shall have first presented


      2
       The Honorable Henry Woods, United States District Judge for the Eastern
District of Arkansas.
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the claim to the appropriate Federal agency. . ."); 28 U.S.C. § 2401(b) (1994)
(providing that tort claim against the United States shall be "forever barred" unless
presented to the appropriate federal agency within two years after the claim
"accrues"); Walker v. United States, 176 F.3d 437, 438 (8th Cir. 1999) (stating that
timely filing of administrative claim is a jurisdictional prerequisite in FTCA action).
In a medical malpractice claim, the claim does not accrue until the plaintiff knows of
the fact of injury and its cause. United States v. Kubrick, 444 U.S. 111, 120 (1979).
The district court found that Vaughns knew of his dapsone- and prednisone-related
injuries by, at the latest, July 29, 1994, or three and one-half years before Vaughns
filed his administrative claim with the Department. We review the district court's
findings of fact regarding subject matter jurisdiction for clear error and its application
of law de novo. Appley Bros. v. United States, 164 F.3d 1164, 1170 (8th Cir. 1999).
After careful review, we hold that the district court's findings are not clearly
erroneous and its application of law to those facts is proper.

       The district court also granted summary judgment in favor of the defendants
as to Vaughns' oral surgery claim. The defendants presented an affidavit from a Dr.
Flaxman stating that Vaughns had suffered no loss of sensation of the facial nerves,
and Vaughns presented no evidence that his facial nerves were severed. See Herring
v. Canada Life Assur. Co., 207 F.3d 1026, 1029-30 (8th Cir. 2000) (stating that
opponent of motion must come forward with specific facts showing there is a genuine
issue for trial). Having reviewed the record de novo, see Bellecourt v. United States,
994 F.2d 427, 430 (8th Cir. 1993), cert. denied, 510 U.S. 1109 (1994), and finding
no error of fact or law, we affirm the judgment of the district court. See 8th Cir. R.
47B.




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A true copy.

      Attest:

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




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