Hatfield v. Collins

Case: 23-2280   Document: 54     Page: 1   Filed: 05/02/2025




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  PAT A. HATFIELD,
                  Claimant-Appellant

                            v.

       DOUGLAS A. COLLINS, SECRETARY OF
             VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                       2023-2280
                 ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 21-5125, Judge Amanda L. Meredith, Judge Joseph L. Falvey, Jr, Judge Michael P. Allen.
                  ______________________

                  Decided: May 2, 2025
                 ______________________

      ADAM R. LUCK, GloverLuck, LLP, Dallas, TX, argued
 for claimant-appellant.

     AUGUSTUS JEFFREY GOLDEN, Commercial Litigation
 Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee.
 Also represented by BRIAN M. BOYNTON, MARTIN F.
 HOCKEY, JR., ELIZABETH MARIE HOSFORD, PATRICIA M.
 MCCARTHY; JONATHAN KRISCH, DEREK SCADDEN, Office of
 General Counsel, United States Department of Veterans
 Affairs, Washington, DC.
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 2                                       HATFIELD v. COLLINS




                  ______________________

     Before LOURIE, BRYSON, and STARK, Circuit Judges.
 LOURIE, Circuit Judge.
      Pat A. Hatfield appeals from a decision of the Court of
 Appeals for Veterans Claims (“the Veterans Court”). Hatfield v. McDonough, 

 (2023). The Veterans
 Court affirmed a decision of the Board of Veterans’ Appeals
 (“the Board”) denying Hatfield’s motion asserting clear and
 unmistakable error (“CUE”) to revise a previous decision of
 the Board rendered in 1980. Because Hatfield has not
 shown that the 1980 Board committed CUE, we affirm.
                        BACKGROUND
     Archie A. Hatfield (“the veteran”) served in the United
 States Army from March 1944 to May 1945. In 1978, the
 veteran was diagnosed with Hodgkin’s lymphoma, for
 which he received radiation therapy at a Veterans Administration (“VA”) facility. The veteran and his wife, appellant in the instant appeal (“Hatfield”), were told that the
 radiation therapy had a 95 percent cure rate and that it
 would enable the veteran to live a normal life for 15 more
 years. J.A. 65, 67, 71. While the radiation therapy successfully eliminated the veteran’s lymphoma, he passed
 away in early 1979 from pulmonary complications associated with the radiation treatment.
     Later that year, Hatfield filed a claim with a Regional
 Office (“RO”) for dependency and indemnity benefits. After
 the RO denied the claim for failing to establish service connection, Hatfield appealed to the Board, asserting that she
 was entitled to compensation under 

 (1976),
 now codified at § 1151, because the veteran’s death was
 caused by negligent VA medical care. J.A. 67–70; see
 

(c)(3) (applicable 1980 regulation implementing § 351, which entitled veteran patients to compensation when they were injured from “carelessness,
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 HATFIELD v. COLLINS                                        3



 negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of the Veterans’
 Administration”).
      In an October 1980 decision, the Board denied Hatfield’s appeal, finding the VA provided adequate medical
 care and that while the veteran’s fatal reaction was unusual, it was a well-recognized complication of radiation
 therapy. J.A. 46–61. The Veterans Court did not exist at
 the time, so the Board’s decision was final.
     Almost 30 years later, in July 2010, Hatfield filed an
 application to reopen her claim. She asserted that she was
 entitled to compensation under 

(d)(1)(ii),
 enacted in 2004, which states that a veteran’s decedent has
 a compensable negligence claim under § 1151 when the
 veteran dies as the result of VA-administered medical care
 for which the veteran did not provide informed consent.
 The Board denied the application, but the Veterans Court
 reversed, holding that Hatfield was entitled to benefits
 starting August 1, 2010, because the VA did not obtain the
 veteran’s informed consent—specifically as to whether he
 understood the risks associated with the radiation therapy—and thus was negligent in administering him treatment. See Hatfield v. McDonough, 

, 332,
 338–40 (2021); J.A. 102.
      Then, in September 2020, Hatfield filed a motion to revise the Board’s October 1980 decision, arguing that she
 was entitled to retroactive benefits from October 1980 to
 July 2010 because it was CUE for the 1980 Board to have
 concluded that she did not raise a compensable negligence
 claim under 

. J.A. 38–44. Specifically, Hatfield contended that the 1980 Board committed CUE by
 failing to consider and apply 38 U.S.C. § 4131—a provision
 in place at the time relating to informed consent—in analyzing whether the VA’s treatment of the veteran
 amounted to a compensable claim. In Hatfield’s view, because § 4131 provided that the VA must obtain a patient’s
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 4                                        HATFIELD v. COLLINS




 written informed consent before administering treatment—and as previously found there was nothing in the
 record establishing that the VA had done so—the 1980
 Board committed CUE because the VA was undebatably
 negligent in its treatment of the veteran.
     In a 2021 decision, the Board denied Hatfield’s motion
 to revise, holding that the 1980 Board did not commit CUE
 and therefore that Hatfield was not entitled to retroactive
 benefits from October 1980 to July 2010. J.A. 30–37. On
 appeal, the Veterans Court affirmed the Board’s decision
 because in 1980 there was no suggestion in the statutory
 text or legislative and regulatory histories of either § 351
 or § 4131 that the VA’s failure to obtain a patient’s informed consent before administering treatment amounted
 to a compensable negligence claim.           See Hatfield,
 36 Vet. App. at 116.
     Hatfield timely appealed to this court. We have jurisdiction under 

(a).
                         DISCUSSION
     Our jurisdiction to review decisions of the Veterans
 Court is prescribed by statute. Scott v. Wilkie, 

 (Fed. Cir. 2019). We have jurisdiction to “review and decide any challenge to the validity of any statute
 or regulation or any interpretation thereof” and “interpret
 constitutional and statutory provisions, to the extent presented and necessary to a decision.” 

(c).
 We review claims of legal error in a decision of the Veterans
 Court without deference. George v. McDonough, 

 (Fed. Cir. 2021), aff’d, 

 (2022).
     A motion for revision based on CUE is a statutorily authorized collateral attack on a final decision of the Board
 that, if successful, results in a “reversed or revised” decision having “the same effect as if [it] had been made on the
 date of the [original] decision.” See 

(a)–(b).
 CUE is a “very specific and rare type of error,” in which a
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 HATFIELD v. COLLINS                                        5



 claimant must demonstrate that “[e]ither the correct facts,
 as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at
 the time were incorrectly applied.” George, 

 (cleaned up). Furthermore, the error must be outcome determinative and “undebatable,” such that “reasonable minds could not differ.” Siples v. Collins, 

 (Fed. Cir. 2025). “[A] determination that there
 was CUE must be based on the record and the law that
 existed at the time of the prior adjudication in question.”
 

                              I
     Hatfield raises the same argument here as she did before the Veterans Court. She contends that in 1980, the
 VA’s failure to adhere to the informed consent requirements of 

 undebatably amounted to a compensable negligence claim under 

. And
 because the record is devoid of evidence that the VA did so,
 the 1980 Board committed CUE. We disagree.
                              A
     Our analysis begins with the text of the relevant statutory provisions. In 1980, § 351 provided in relevant part:
    Where any veteran shall have suffered an injury,
    or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment . . .
    awarded under any of the laws administered by the
    Veterans’ Administration . . . and such injury or
    aggravation results in additional disability to or
    the death of such veteran, disability or death compensation under this chapter and dependency and
    indemnity compensation under chapter 13 of this title shall be awarded.
 

 (1976) (emphasis added).
    Section 4131 in turn provided:
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 6                                        HATFIELD v. COLLINS




     The Administrator . . . shall prescribe regulations
     establishing procedures to ensure that . . . to the
     maximum extent practicable, all patient care furnished under this title shall be carried out only with
     the full and informed consent of the patient or subject or, in appropriate cases, a representative
     thereof.
 

 (1976) (emphasis added).
     As is evident, the plain language of each statute does
 not cross-reference the other. The two statutes therefore
 do not suggest, let alone undebatably so, that the VA’s failure to adhere to § 4131’s requirement of obtaining a patient’s informed consent amounts to a compensable
 negligence claim under § 351. See Nat’l Org. of Veterans’
 Advocs., Inc. v. Sec’y of Veterans Affs., 

 (Fed. Cir. 2020) (en banc) (Congress’s silence is “powerful
 evidence” of its intent not to act).
                               B
     The legislative and regulatory history of the two statutes supports that conclusion.
     Section 351 was derived from the World War Veterans’
 Act, 1924, 

, 

, 623–24.
 Gardner v. Brown, 

 (Fed. Cir. 1993), aff’d,
 

 (1994). The relevant statutory language was
 repealed in 1933, re-enacted in 1934, and codified at § 351
 in 1958. 1 Gardner, 

 n.8. The only time the
 concept of consent was mentioned in the promulgation of
 what would become § 351 was during a hearing before the
 House Committee on World War Veterans’ Legislation,
 when the Director of the Veterans Bureau and the



     1  Between 1958 and 1976, Congress made several
 minor changes to § 351, but they are immaterial to this
 case.
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 HATFIELD v. COLLINS                                          7



 Chairman of the committee engaged in the following colloquy fleshing out situations in which compensation would
 be payable:
    Director: In the hospital, at the patient’s consent, he
    may undergo a certain surgical operation, with the
    hope, on the best advice available, that it will overcome some disability, but instead of doing that it
    goes in the other direction. Now, he may have a
    considerable minor disability due to his service, but
    at the same time he finds himself totally disabled,
    and the bureau under the existing law has no way
    of compensating him.
    Chairman: [Compensation] might come from a
    [procedure] done at his request?
    Director: That is true.
 World War Veterans’ Legislation, Part 1: Hearings on H.R.
 7320 Before the House Comm. on World War Veterans’
 Legis., 68th Cong., 114 (1924) (emphases added).
     At most, that dialogue suggests that the Veterans Bureau may have considered consent to be relevant under
 § 351’s predecessor and that that consideration was put before Congress. What it does not do, however, is resolve the
 issue we are concerned with here: whether it is undebatable that Congress or the VA intended that the failure to
 obtain a patient’s informed consent amounted to a compensable negligence claim. 2



    2    We also observe that at least through the 1950s,
 medical treatment administered without a patient’s informed consent was uniformly considered across the states
 to be a battery, an intentional tort, as opposed to negligence. E. Haavi Morreim, Medical Research Litigation and
 Malpractice Tort Doctrines: Courts on a Learning Curve,
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 8                                        HATFIELD v. COLLINS




     In 1961, the VA promulgated 

(c), the
 implementing regulation for § 351, requiring claimants to
 establish that they were injured as the result of “carelessness, negligence, lack of proper skill, error in judgment, or
 similar instances of indicated fault on the part of the Veterans’ Administration” to have a compensable claim under
 § 351. 3 

, 1590–91 (Feb. 24, 1961). As is
 clear, the concept of informed consent was not mentioned
 in the text of the regulation.
     Accordingly, there is no suggestion in § 351’s pre-1980
 legislative and regulatory history that the VA’s failure to
 obtain a patient’s informed consent amounted to a compensable negligence claim for injuries sustained as a result of
 VA-administered treatment.
      We next turn to the legislative and regulatory history
 of § 4131. Congress enacted § 4131 as part of the Veterans


 4 HOUS. J. HEALTH L. & POL’Y 1, 53 (2003). To be sure,
 state common law does not define the standards of care the
 VA is required to adhere to in administering healthcare.
 See Feres v. United States, 

 (1950). Such
 standards are defined by Congress in the Veterans Code.
 Nevertheless, that no U.S. jurisdiction considered the failure to obtain a patient’s informed consent to be negligence
 when § 351 was enacted supports the notion that Congress
 did not either.
     3    In Gardner, we held, and the Supreme Court affirmed, that 

(c)’s “negligence . . . or similar instances of indicated fault” requirement was
 inconsistent with § 351’s successor statute (§ 1151). 

. Nevertheless, because 

(c) was
 good law at the time of the 1980 Board decision, it is relevant to our analysis because a legal-based CUE inquiry examines the law in place at the time of the relevant Board
 decision, even if the law at that time is later changed by a
 judicial decision. See George, 

.
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 HATFIELD v. COLLINS                                            9



 Omnibus Health Care Act of 1976. 

(a), 

, 2849–50. The Act did not add or
 amend any provisions relating to compensation, but rather
 solely addressed the VA’s administration of healthcare.
 See Kirkpatrick v. Principi, 

 (Fed. Cir.
 2003) (“[T]he language and statutory background of the
 [healthcare] provisions . . . are quite different from the language and background of section[] [351].”).
      Indeed, at a hearing before the Subcommittee on
 Health and Hospitals, when discussing the importance of
 obtaining a veteran patient’s informed consent, a member
 of the subcommittee and a testifying VA physician touched
 on the topics of negligence and compensation:
     Member: In the non-VA sector . . . [a] physician
     who fails to obtain the informed consent of the patient before operating is subjecting himself or herself to potential malpractice action, of course, and
     this possibility of legal liability, at least in theory,
     tends to make the physician observe the rules. But
     in the Federal context, including the VA, physicians
     are not liable for negligence under the same circumstances, and under Federal law a physician in a VA
     hospital is not personally liable for malpractice.
     Does not this suggest that standards for informed
     consent should be very stringent in the VA hospital
     system since the theoretical constraint of malpractice action is absent?
     Physician: Absolutely . . . because of the different
     medical-legal relationship between the veteran patient and his physicians from that of a private patient, we must exercise even greater diligence to
     avoid abridgment of the rights of the veteran patient.
 Veterans Omnibus Health Care Act of 1976, Part 2: Hearing
 Before the Subcomm. on Health and Hosps., Comm. on
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 10                                       HATFIELD v. COLLINS




 Veterans’ Affs. Senate, 94th Cong. 601 (1976) (emphases
 added).
     One could construe that dialogue to suggest that Congress intended a VA physician’s failure to adhere to the informed consent requirements of § 4131 to subject the VA to
 a “malpractice action”—i.e., a compensable claim for negligence under § 351—similar to the private sector. See id.
 But an equally plausible construction is that because the
 VA physician-patient relationship is materially “different”
 from that of a typical private physician-patient relationship, the onus is entirely on the VA “to avoid abridgment of
 the rights of the veteran patient.” See id.
     That      latter      construction    is   embodied     in
 

, § 4131’s implementing regulation. Section 17.34 did not make any mention of VA benefits compensation or negligence. 

, 6935 (Jan. 31,
 1980). On the contrary, subsection (d) of § 17.34 provided:
 “The Chief Medical Director will establish an appropriate
 method for the periodic review of patients’ consents in order to insure compliance with this section and other regulations and to maintain the protection of the patients’
 rights. (

).” 

 (1980). (emphases added). That § 17.34(d) states that the Chief Medical Director—a position housed within the VA—will
 “insure compliance” with § 4131, suggests that the VA construed § 4131 to be a self-governing statute, and thus the
 VA’s failure to adhere to § 4131’s requirements did not
 amount to a compensable negligence claim under § 351. Cf.
 Touche Ross & Co. v. Redington, 

 (1979)
 (“[T]he fact that a federal statute has been violated and
 some person harmed does not automatically give rise to a
 private cause of action in favor of that person.” (citation
 omitted)); see Skidmore v. Swift & Co., 

, 139–
 40 (1944) (an agency’s interpretations “made in pursuance
 of official duty . . . constitute a body of experience and informed judgment to which courts and litigants may
 properly resort for guidance”).
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 HATFIELD v. COLLINS                                       11



     Only in the early 2000s did the law link the VA’s failure
 to adhere to § 4131 and compensability under § 351. 4 In
 2002, the VA proffered 

(d)(1)(ii), which it
 described as a “propos[al] to include a requirement that
 consent be informed, in accordance with 38 CFR 17.32,”
 else a patient who is injured or dies as the result of VA
 medical care could bring a claim for negligence under
 § 1151, § 351’s successor statute. 

,
 76323 (Dec. 12, 2002) (emphasis added). Present-day 

 is the amended version of § 17.34, § 4131’s
 implementing regulation. 

(d)(1)(ii)’s forward-looking language—i.e., a “propos[al] to include”—
 suggests that the VA believed the proffered regulation to
 be a departure from how the compensability and informed
 consent provisions previously operated, and thus that the
 law in 2002 did not permit a compensable negligence claim
 under § 351 when the VA failed to adhere to § 4131. 5 Skidmore, 

, 139–40.
                          …
     In sum, none of the text, legislative history, or regulatory history of 

 and 

     4   Although CUE is evaluated without regard to law
 that post-dates the relevant Board decision, “the CUE inquiry does not preclude reference” to later enacted law “to
 the extent it is informative of the state of the law at the
 relevant time.” Siples, 

 n.6 (Fed. Cir.
 2025). Hatfield acknowledged as much at oral argument.
 Oral Arg. at 11:35–11:53, available at https://oralarguments.cafc.uscourts.gov/default.aspx?fl=23-2280_0305202
 5.mp3.
     5   Section 3.361(d)(1)(ii) was ultimately enacted in
 2004, 

, 46432 (Aug. 3, 2004), and as
 noted above served as the basis for Hatfield’s successful
 motion to reopen her claim, entitling her to compensation
 from August 1, 2010 to the present.
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 12                                      HATFIELD v. COLLINS




 establishes that it is undebatable that, in 1980, the VA’s
 failure to obtain a patient’s informed consent before administering medical treatment amounted to a compensable
 negligence claim.
                              C
     Hatfield contends that the above approach in analyzing
 this case—i.e., looking for an express link between § 351
 and § 4131—is misguided. Instead, she asserts that the
 correct approach is to read the provisions together as part
 of the “overall statutory scheme” for providing compensation to veterans injured from negligent VA medical care.
 Hatfield Br. 18 (citing King v. Burwell, 

 (2015)). Under Hatfield’s approach, the analysis should go
 as follows: (1) in 1980, § 351 provided the mechanism for
 receiving compensation from the VA when a veteran was
 injured and the VA did not adhere to its prescribed standards of care; (2) § 4131’s informed consent requirements
 were one such standard of care; (3) the VA breached that
 standard here by not obtaining the veteran’s informed consent, and thus the 1980 Board committed CUE by concluding that Hatfield did not have a compensable negligence
 claim.
     But that is not the law. If the issue before us were
 simply whether, applying ordinary principles of statutory
 construction, violation of § 4131 in 1980 amounted to a
 compensable claim under § 351, Hatfield’s arguments
 might be persuasive. But we are dealing with a fundamentally different issue in this case: construction through the
 lens of CUE. That § 351 and § 4131 were in place at the
 same time and could conceivably be read together, without
 more, is not enough to establish that they undebatably
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 HATFIELD v. COLLINS                                      13



 must be. 6 And as explained above, the separateness of
 § 351 and § 4131 in 1980 is reinforced by
 

(d), which suggests that violation of
 § 4131 does not provide an injured veteran a private cause
 of action for negligence. Touche, 

.
                        CONCLUSION
      We have considered Hatfield’s remaining arguments
 and find them unpersuasive. For the reasons provided, we
 affirm the Veteran’s Court’s decision that the 1980 Board
 did not commit CUE.
                        AFFIRMED




     6   We emphasize that our decision today should not
 be construed as requiring an express legislative or regulatory statement to read two separate provisions together in
 the context of a legal-based CUE inquiry. The consequences of a provision’s silence must be analyzed on a caseby-case basis.