                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 02-4155
ROBERT DAVIS,
                                            Plaintiff-Appellant,
                               v.

UNITED STATES OF AMERICA,
                                            Defendant-Appellee.
                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
            No. 01 C 6368—Amy J. St. Eve, Judge.
                         ____________
    ARGUED DECEMBER 4, 2003—DECIDED JULY 12, 2004
                   ____________




  Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
   BAUER, Circuit Judge. On August 17, 2001, Robert Davis
filed an action under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(b), 2671 et seq., against the United States
following a transurethral resection of his prostate per-
formed at the Veterans Administration Hospital. He sought
$1,000,000 in damages. After a bench trial, the court found
the United States liable for medical malpractice and
requested that the parties submit supplemental memo-
randa on damages.
  On November 7, 2002, the district court awarded Davis
damages in the total amount of $279,875 computed as
2                                                No. 02-4155

follows: a) $225,000 for loss of normal life; b) $25,000 for
pain and suffering; c) $4,875 for economic damages; and d)
$25,000 for the aggravation of Davis’ post-traumatic stress
disorder caused by the breach of the standard of care. In
this appeal, Davis challenges the district court’s damages
determination as to the loss of his VA benefits and the
damages awarded for pain and suffering. We affirm.


                      BACKGROUND
  Davis, a veteran of the United States Air Force, sought
medical treatment at the North Chicago VA hospital in
February 1999. At that time he complained of painful urina-
tion, frequent urination at night, and hesitancy in urination.
Dr. Gerard Adrien examined Davis, determined that he had
an enlarged middle lobe of the prostate, and recommended a
transurethral incision of the prostate (“TUIP”). No tissue is
removed from the prostate with a TUIP. However, on March
4, 1999, without obtaining Davis’ consent, Dr. Adrien per-
formed a transurethral resection of the prostate (“TURP”) on
Davis and removed tissue from his prostate. Dr. Adrien did
not discuss the possibility of medication as an alternative to
either the TUIP or TURP.
  Prior to trial, the United States admitted that Dr. Adrien
had breached the standard of care by failing to discuss all
potential treatments with Davis and to disclose that he would
perform a TURP rather than a TUIP. At trial, the issue was
whether Davis had established by a preponderance of the
evidence that the breach proximately caused his injuries.
After hearing the evidence, the district court concluded that
Davis had met his burden of demonstrating proximate
causation with respect to the following injuries only: retro-
No. 02-4155                                                 3

grade ejaculation, erectile dysfunction, incontinence, and
aggravation of post-traumatic stress disorder (“PTSD”).1
  Aside from damages for loss of normal life, pain and suf-
fering, emotional distress and aggravation of PTSD, Davis
also indicated that he was seeking approximately $310,000
for lost disability pension and the cost of prescription
medication. Davis contended that as a matter of law he
would “presumptively” lose all of his VA disability benefits
upon entry of a judgment in his favor. The trial judge found
that he had not demonstrated he was entitled to those
damages and declined to award them.


                       DISCUSSION
Standard of Review
  Under the Federal Tort Claims Act (“FTCA”), we review
damages determinations under the clearly erroneous
standard and the nature and measure of damages are as-
sessed according to state law. Doe v. United States, 976 F.2d
1071, 1083 (7th Cir. 1992). The district court’s damage
award cannot be overturned “unless its factual basis is
clearly erroneous.” Id. This standard is only met when,
after reviewing all of the evidence, we are left with the “de-
finite and firm conviction” that a mistake has been made.
Savic v. United States, 918 F.2d 696, 700 (7th Cir. 1990).
Our task on appeal is “limited to inquiring whether the trial
court abused its discretion; it is not to consider whether we
personally would have made the same award.” Doe, 976
F.2d at 1083.




1
  Prior to March 4, 1999, Davis had been an inpatient at North
Chicago VA hospital for treatment of his post-traumatic stress
disorder.
4                                               No. 02-4155

Loss of VA Disability Benefits
   Davis argues on appeal that the district court erred by
dismissing his request for additional damages as a remedy
for the loss of his VA benefits upon receipt of the damage
award in this case. The district court’s rejection was based
on its finding that he had not proven actual loss of benefits
and that even if he could prove actual loss, he had not
shown causation. The court stated, “It is difficult for the
Court to say that the breach of the standard of care here
caused any loss of VA benefits that Mr. Davis may receive,
even if he could prove that he is going to lose those bene-
fits.” Davis App. at 8.
  The district court made the correct determination, but it
was not because Davis failed to prove the loss. Davis’ VA
benefits are based on his income; if his income changes, his
benefits change. The fact that the VA is liable to Davis and
that he is entitled to damages has very little to do with his
right to income-based benefits.
  38 U.S.C. § 1503 provides that annual income includes
annuity payments. 38 U.S.C. § 1521(e) states that the
pension rate shall be reduced to the amount of the veteran’s
annual income and 38 U.S.C. § 1522 allows for the denial or
discontinuation of pension payments based upon the annual
income of the veteran. The post-trial evidence Davis
presented to the district court established that his pension
rate would be affected by an increase in his annual income.
This in itself does not entitle Davis to damages for loss of
benefits nor does it demonstrate that the district court was
in clear error.
  Davis also contends that the district court erred in con-
cluding that the breach of the standard of care did not cause
the loss. Davis attempts to make a connection between the
VA’s malpractice and the presumptive loss of his pension
benefits under 38 U.S.C. § 1521. To establish eligibility for
benefits under § 1521, a veteran must meet the following
No. 02-4155                                                 5

criteria: (1) service during a period of war; (2) total and
permanent disability from non-service connected injury; and
(3) less income than the maximum amount allowed by law
for pension purposes. Fischer v. West, 11 Vet. App. 121, 122
(1998). Therefore, it is the increase in Davis’ income, not
the commission of the tort, that causes him to be rendered
ineligible to receive a benefit reserved exclusively for
indigent veterans whose disabilities are not service-related.
The district court did not err in concluding that Davis was
not entitled to damages based on the potential loss of VA
benefits.


Damage Award for Pain and Suffering
  Davis argues on appeal that the district court erred by
limiting the damage award for pain and suffering to a two-
month period. The court awarded Davis, in addition to other
damages, $25,000 for pain and suffering. The district court
stated that the compensation for pain and suffering beyond
the two-month period was covered by the $225,000 awarded
for loss of normal life. In its ruling on liability, the court
found that Davis had established by a preponderance of the
evidence that in the two months following the TURP he
suffered various injuries typically attributable to surgery.
After reviewing the evidence on record for this appeal, we
find that the court made a reasonable determination of
damages. As stated above, we will not disturb the district
court’s damages determination unless it is clearly errone-
ous; it is not enough that we may have given a different
award.
  Based on the above, we AFFIRM the conclusions and find-
ings of the district court.
6                                         No. 02-4155

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—7-12-04
