             Case: 15-11053    Date Filed: 01/29/2016   Page: 1 of 11


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-11053
                            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
                         ________________________

                                (January 29, 2016)

Before TJOFLAT, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Richard S. Milbauer appeals pro se for the second time dismissal of his

complaint alleging medical malpractice against the United States, because of the
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diagnosis and treatment of an injury to his right shoulder by the Department of

Veterans Affairs (“VA”). We affirm.

            I. FACTUAL AND PROCEDURAL BACKGROUND

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

Brooklyn, New York (“Brooklyn VA”), after injuring his right shoulder in a work-

related accident at a construction site. Doctors recommended Milbauer receive an

MRI to diagnose his injury. Milbauer explained he was claustrophobic and needed

an open MRI, which would not require him to be enclosed in a tube. The Brooklyn

VA did not have an open MRI machine, so Milbauer requested authorization to

receive an open MRI at an outside facility. Ten months later, in July 2006,

Milbauer received an open MRI, which revealed he had a severely torn rotator

cuff. Milbauer underwent surgery to repair the tear, but the surgery was

unsuccessful, because the damage was too severe. At no point during his treatment

did any of the medical staff at the Brooklyn VA recommend or perform alternative

diagnostic procedures for Milbauer’s shoulder injury.

      Milbauer filed an administrative claim with the VA under the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, in which he alleged the

Brooklyn VA had failed to provide an open MRI of his right shoulder in a timely

manner. He contended the ten-month delay in receiving a MRI caused him

constant pain and limited use of his right arm; his shoulder could have been


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repaired, if he had received the MRI within 30 days of his injury. The VA denied

Milbauer’s claim.

      Thereafter, Milbauer filed a complaint in federal district court and alleged

medical malpractice claims against the United States under the FTCA. In his

complaint, Milbauer recounted the treatment he received at the Brooklyn VA, the

difficulties he had experienced in obtaining authorization for the open MRI, and

the failure of the Brooklyn VA medical staff to offer him any alternative diagnostic

procedures for his injury. He alleged the Brooklyn VA medical staff deviated from

appropriate standards of care by (1) failing to take reasonable steps to diagnose his

rotator-cuff injury in a timely manner with an outside MRI, (2) waiting for ten

months to prepare the necessary paperwork to authorize the outside MRI, and

(3) committing other negligent acts or omissions.

      The government moved to dismiss Milbauer’s complaint for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The

government contended Milbauer’s FTCA claims were barred by the Veterans

Judicial Review Act (“VJRA”), 38 U.S.C. § 511(a)VJRA, which deprives the

federal district courts of subject matter jurisdiction over claims regarding benefits

to veterans by the VA. Although Milbauer framed his claim as medical

malpractice, the government argued it was in substance a claim concerning the

delay in his receipt of a veteran’s benefit, or authorization to have the VA pay for


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an open MRI at an outside facility. The government further contended Milbauer

had failed to exhaust administratively his claim, and the Brooklyn VA medical

staff should have offered him alternative-diagnostic procedures.

      Milbauer responded his claims were not barred by the VJRA, because he

sought damages caused by negligence of the Brooklyn VA, not denial of benefits.

Milbauer argued he had exhausted his alternative-diagnostic-procedures claim,

because, under Burchfield v. United States, 168 F.3d 1252 (11th Cir. 1999), he was

not required to provide the VA with every possible theory of recovery. Instead, he

merely had to provide enough information for the VA to begin its own

investigation, and the VA investigation should have revealed his alternative-

diagnostic-procedures claim. Milbauer also asserted the VA should have followed

its own policy, VA New York Harbor Healthcare System Policy No. 11-41,

requiring doctors to exhaust alternative imaging tests of equal effectiveness before

ordering an outside MRI.

      The district judge granted the government’s motion to dismiss and dismissed

Milbauer’s complaint without prejudice for lack of subject matter jurisdiction. The

judge first concluded Milbauer had failed to exhaust his administrative remedies

regarding his alternative-diagnostic-procedures claim, because his administrative

complaint did not mention that claim. Second, the judge concluded she lacked

jurisdiction under the VJRA to review Milbauer’s delayed MRI claim, since the


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crux of his claim was that he did not receive timely an outside MRI, which was a

grievance with the VA procedure for providing that benefit, not with the medical

treatment he had received.

      Milbauer appealed; we affirmed in part, vacated in part, and remanded.

Milbauer v. United States, 587 F. App’x 587, 588 (11th Cir. 2014) (“Milbauer I”).

We concluded Milbauer’s delayed MRI claim was 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.” Id. at 591. The district judge also could

not have adjudicated Milbauer’s claim without first determining whether he was

entitled to have an outside MRI and whether the Brooklyn VA properly followed

its policy in processing his request. Id. at 591-92. Therefore, the VJRA barred

review of Milbauer’s delayed MRI claim. Id. at 592.

      We vacated regarding Milbauer’s alternative-diagnostic-procedures claim,

because the district judge did not analyze whether Milbauer’s administrative

complaint “provided sufficient information under Burchfield to overcome the

FTCA’s bar to unexhausted claims.” Id. at 592. We remanded “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.” Id.


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      On remand, the district judge concluded Milbauer had exhausted his

alternative-diagnostic-procedures claim under Burchfield, because he had provided

sufficient information in his administrative claim for the VA investigators to at

least inquire whether his physicians had considered any alternative-diagnostic

tests. Because his alternative-diagnostic-procedures claim was closely related to

his delayed MRI claim, that issue would have surfaced during the VA

investigation. Although Milbauer’s claim survived the exhaustion requirement,

the judge determined she lacked subject matter jurisdiction over the alternative-

diagnostic-procedures claim for the same reasons she lacked jurisdiction over his

delayed MRI claim. In essence, Milbauer claimed he should have received

alternative diagnostic procedures, which was a benefits claim. Like his delayed

MRI claim, Milbauer had sought a particular benefit and complained the process of

obtaining that benefit caused the delay in his diagnosis. Consequently, his

grievance was not with the treatment he received, but with the VA benefits

procedure. Finally, the judge noted Milbauer’s reliance on the VA internal policy

was unavailing, since the judge would have to interpret the policy language to

analyze the merits of his argument, which the VJRA prohibits. The judge again

granted the government’s motion to dismiss.

      In this second appeal, Milbauer argues the district judge erred in concluding

the VJRA precluded judicial review of his alternative-diagnostic-procedures claim.


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He contends his claim is the VA failed to inform him of the availability of

alternative-diagnostic procedures, which constituted medical malpractice. He

argues review of his claim would not require the district judge to determine

whether he was entitled to any benefits; instead, it would require the judge

determine only whether the VA had a duty to inform him of the availability of

alternative procedures.

                                 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, 717 F.3d 840, 843 (11th Cir.

2013). The VJRA provides the decision of the Secretary concerning 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). “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).

      The VJRA does not completely eliminate judicial review of benefits

decisions, instead determinations of the Secretary may be appealed to the Board of

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


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

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

established by the VJRA. Id. §§ 7251, 7252(a), 7266(a). Decisions of the Court of

Appeals for Veterans Claims are in turn appealable to the Court of Appeals for the

Federal Circuit. Id. § 7292(a), (c). A decision by the Federal Circuit is subject to

certiorari review by the Supreme Court. Id. § 7292(c). 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, 85 F.3d 532, 534

(11th Cir. 1996).

      In Hall, a veteran filed a complaint in district court after receiving

notification his disability benefits had been reduced in accordance with 38 C.F.R.

§ 3.665, which requires disability compensation be diminished during periods of

incarceration for certain felony convictions. Id. at 532-33. The veteran alleged the

reduction in his disability benefits constituted a tort and violated numerous

constitutional provisions; he specifically requested the district judge find 38 C.F.R.

§ 3.665 violated the Constitution. Id. at 533. The judge dismissed the complaint

sua sponte for lack of subject matter jurisdiction under the VJRA. Id. On appeal,

we held the district judge lacked jurisdiction to determine the constitutionality of


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§ 3.665, because the VJRA precluded judicial review of the Secretary’s decisions

involving the interpretation or application of a regulation governing veterans’

benefits. Id. at 534-35. We held a plaintiff may not circumvent the VJRA’s

jurisdictional limitations by alleging a benefits claim in constitutional terms. See

id.

      In Milbauer I, we applied a test established by the D.C. Circuit. See

Milbauer I, 587 F. App’x at 590-92. In Thomas v. Principi, 394 F.3d 970 (D.C.

Cir. 2005), a veteran filed suit in district court and alleged the VA had committed

medical malpractice under the FTCA and caused him intentional emotional distress

by failing to inform him of his “working diagnosis of schizophrenia.” Id. at 972.

The D.C. Circuit held the VJRA did not preclude review of those claims, because

the district judge could adjudicate them “without determining first whether

Thomas was entitled to a certain level of benefits.” Id. at 974 (internal quotation

marks and alteration omitted). The D.C. Circuit further explained: “Because 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.’” Id. (quoting 38

U.S.C. § 511) (alteration omitted).

      The D.C. Circuit noted, however, the VJRA did bar Thomas’s claims that

the VA had failed to render appropriate medical services, and the VA’s persistent


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denial of necessary medical treatment caused him severe emotional distress. Id. at

975. Adjudication of those claims would have required “the district court to

determine first whether the VA acted properly in handling Thomas’s benefits

request.” Id. at 974 (citation and internal quotation marks omitted). Therefore, the

D.C. Circuit concluded the district judge lacked jurisdiction over those claims. Id.

at 975.

      In this appeal, Milbauer asserts the doctors at the Brooklyn VA failed to

inform him of the availability of alternative-diagnostic procedures and contends

this claim is analogous to the claim in Thomas, where the VA failed to inform

Thomas of his working diagnosis of schizophrenia. Although Milbauer attempts to

recast his claim on appeal as relating solely to the failure of the VA to inform him

alternative procedures were available, his claim relates to the VA’s failure to

perform such procedures. In district court, Milbauer argued doctors at the

Brooklyn VA could and should have performed alternative procedures to diagnose

his shoulder injury, when it became clear he was experiencing difficulty obtaining

an outside MRI. He further continues to assert on appeal, if alternative-diagnostic

procedures had been employed, his injury would have been diagnosed sooner,

which would have resulted in a better outcome.

      Like his delayed MRI claim in Milbauer I, the VJRA bars judicial review of

Milbauer’s alternative-diagnostic-procedures claim, because it is a benefits issue.


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Milbauer contends the VA was obligated to provide him with a particular benefit,

an alternative procedure to diagnose his shoulder injury, and failure of the VA to

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

Milbauer I, 587 F. App’x at 591. To resolve his claim, the judge first would have

to determine whether Milbauer was entitled to a certain level of benefits, the

performance of diagnostic procedures for his shoulder injury. See Thomas 394

F.3d at 974. Under the Brooklyn VA internal policy, doctors are required to

consider and perform alternative procedures of equal effectiveness before

authorizing procedures at an outside facility. Consequently, resolution of

Milbauer’s claim would require the district judge to determine whether the

Brooklyn VA properly followed its own policy in authorizing Milbauer’s outside

MRI. See Thomas, 394 F.3d at 975. We conclude the district judge correctly

determined she lacked subject matter jurisdiction over Milbauer’s alternative-

diagnostic-procedures claim.

      AFFIRMED.




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