Pat A. Hatfield v. Douglas A. Collins, Secretary of Veterans Affairs

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. Mere-
dith, Judge Joseph L. Falvey, Jr, Judge Michael P. Allen.
______________________
Decided: May 2, 2025
______________________
ADAM R. L UCK, GloverLuck, LLP, Dallas, TX, argued
for claimant-appellant.
AUGUSTUS J EFFREY G OLDEN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, MARTIN F.
HOCKEY , J R., ELIZABETH MARIE HOSFORD , P ATRICIA M.
MCCARTHY ; J ONATHAN K RISCH , D EREK SCADDEN, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
Case: 23-2280 Document: 54 Page: 1 Filed: 05/02/2025

-- 1 of 13 --

HATFIELD v. COLLINS 2
______________________
Before L OURIE, BRYSON, and STARK, Circuit Judges.
L OURIE, Circuit Judge.
Pat A. Hatfield appeals from a decision of the Court of
Appeals for Veterans Claims (“the Veterans Court”). Hat-
field v. McDonough, 36 Vet. App. 97 (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 Admin-
istration (“VA”) facility. The veteran and his wife, appel-
lant 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 suc-
cessfully eliminated the veteran’s lymphoma, he passed
away in early 1979 from pulmonary complications associ-
ated 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 con-
nection, Hatfield appealed to the Board, asserting that she
was entitled to compensation under 38 U.S.C. § 351 (1976),
now codified at § 1151, because the veteran’s death was
caused by negligent VA medical care. J.A. 67–70; see
38 C.F.R. § 3.358(c)(3) (applicable 1980 regulation imple-
menting § 351, which entitled veteran patients to compen-
sation when they were injured from “carelessness,
Case: 23-2280 Document: 54 Page: 2 Filed: 05/02/2025

-- 2 of 13 --

HATFIELD v. COLLINS 3
negligence, lack of proper skill, error in judgment, or simi-
lar instances of indicated fault on the part of the Veterans’
Administration”).
In an October 1980 decision, the Board denied Hat-
field’s appeal, finding the VA provided adequate medical
care and that while the veteran’s fatal reaction was unu-
sual, 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 38 C.F.R. § 3.361(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 ther-
apy—and thus was negligent in administering him treat-
ment. See Hatfield v. McDonough, 33 Vet. App. 327, 332,
338–40 (2021); J.A. 102.
Then, in September 2020, Hatfield filed a motion to re-
vise 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 38 U.S.C. § 351. J.A. 38–44. Specifically, Hat-
field 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 ana-
lyzing whether the VA’s treatment of the veteran
amounted to a compensable claim. In Hatfield’s view, be-
cause § 4131 provided that the VA must obtain a patient’s
Case: 23-2280 Document: 54 Page: 3 Filed: 05/02/2025

-- 3 of 13 --

HATFIELD v. COLLINS 4
written informed consent before administering treat-
ment—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 in-
formed 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 juris-
diction under 38 U.S.C. § 7292(a).
D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is prescribed by statute. Scott v. Wilkie, 920 F.3d
1375, 1377 (Fed. Cir. 2019). We have jurisdiction to “re-
view 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 pre-
sented and necessary to a decision.” 38 U.S.C. § 7292(c).
We review claims of legal error in a decision of the Veterans
Court without deference. George v. McDonough, 991 F.3d
1227, 1233 (Fed. Cir. 2021), aff’d, 596 U.S. 740 (2022).
A motion for revision based on CUE is a statutorily au-
thorized collateral attack on a final decision of the Board
that, if successful, results in a “reversed or revised” deci-
sion having “the same effect as if [it] had been made on the
date of the [original] decision.” See 38 U.S.C. § 7111(a)–(b).
CUE is a “very specific and rare type of error,” in which a
Case: 23-2280 Document: 54 Page: 4 Filed: 05/02/2025

-- 4 of 13 --

HATFIELD v. COLLINS 5
claimant must demonstrate that “[e]ither the correct facts,
as they were known at the time, were not before the adju-
dicator or the statutory or regulatory provisions extant at
the time were incorrectly applied.” George, 991 F.3d at
1233 (cleaned up). Furthermore, the error must be out-
come determinative and “undebatable,” such that “reason-
able minds could not differ.” Siples v. Collins, 127 F.4th
1325, 1330 (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.”
Id.
I
Hatfield raises the same argument here as she did be-
fore the Veterans Court. She contends that in 1980, the
VA’s failure to adhere to the informed consent require-
ments of 38 U.S.C. § 4131 undebatably amounted to a com-
pensable negligence claim under 38 U.S.C. § 351. 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 stat-
utory 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 hos-
pitalization, 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 com-
pensation under this chapter and dependency and
indemnity compensation under chapter 13 of this ti-
tle shall be awarded.
38 U.S.C. § 351 (1976) (emphasis added).
Section 4131 in turn provided:
Case: 23-2280 Document: 54 Page: 5 Filed: 05/02/2025

-- 5 of 13 --

HATFIELD v. COLLINS 6
The Administrator . . . shall prescribe regulations
establishing procedures to ensure that . . . to the
maximum extent practicable, all patient care fur-
nished under this title shall be carried out only with
the full and informed consent of the patient or sub-
ject or, in appropriate cases, a representative
thereof.
38 U.S.C. § 4131 (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 fail-
ure to adhere to § 4131’s requirement of obtaining a pa-
tient’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., 981 F.3d 1360, 1385
(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 stat-
utes supports that conclusion.
Section 351 was derived from the World War Veterans’
Act, 1924, Pub. L. No. 68-242, § 213, 43 Stat. 607, 623–24.
Gardner v. Brown, 5 F.3d 1456, 1463 (Fed. Cir. 1993), aff’d,
513 U.S. 115 (1994). The relevant statutory language was
repealed in 1933, re-enacted in 1934, and codified at § 351
in 1958.1 Gardner, 5 F.3d at 1462 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.
Case: 23-2280 Document: 54 Page: 6 Filed: 05/02/2025

-- 6 of 13 --

HATFIELD v. COLLINS 7
Chairman of the committee engaged in the following collo-
quy 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 over-
come 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 Bu-
reau may have considered consent to be relevant under
§ 351’s predecessor and that that consideration was put be-
fore Congress. What it does not do, however, is resolve the
issue we are concerned with here: whether it is undebata-
ble that Congress or the VA intended that the failure to
obtain a patient’s informed consent amounted to a compen-
sable negligence claim.2
2 We also observe that at least through the 1950s,
medical treatment administered without a patient’s in-
formed consent was uniformly considered across the states
to be a battery, an intentional tort, as opposed to negli-
gence. E. Haavi Morreim, Medical Research Litigation and
Malpractice Tort Doctrines: Courts on a Learning Curve,
Case: 23-2280 Document: 54 Page: 7 Filed: 05/02/2025

-- 7 of 13 --

HATFIELD v. COLLINS 8
In 1961, the VA promulgated 38 C.F.R. § 3.358(c), the
implementing regulation for § 351, requiring claimants to
establish that they were injured as the result of “careless-
ness, negligence, lack of proper skill, error in judgment, or
similar instances of indicated fault on the part of the Vet-
erans’ Administration” to have a compensable claim under
§ 351.3 26 Fed. Reg. 1561, 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 compen-
sable 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. & P OL ’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, 340 U.S. 135, 143 (1950). Such
standards are defined by Congress in the Veterans Code.
Nevertheless, that no U.S. jurisdiction considered the fail-
ure 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 af-
firmed, that 38 C.F.R. § 3.358(c)’s “negligence . . . or simi-
lar instances of indicated fault” requirement was
inconsistent with § 351’s successor statute (§ 1151). 5 F.3d
at 1463. Nevertheless, because 38 C.F.R. § 3.358(c) was
good law at the time of the 1980 Board decision, it is rele-
vant to our analysis because a legal-based CUE inquiry ex-
amines 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, 991 F.3d at 1238.
Case: 23-2280 Document: 54 Page: 8 Filed: 05/02/2025

-- 8 of 13 --

HATFIELD v. COLLINS 9
Omnibus Health Care Act of 1976. Pub. L. No. 94-581,
§ 111(a), 90 Stat. 2842, 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, 327 F.3d 1375, 1384 (Fed. Cir.
2003) (“[T]he language and statutory background of the
[healthcare] provisions . . . are quite different from the lan-
guage 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 pa-
tient before operating is subjecting himself or her-
self 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 circum-
stances, 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 malprac-
tice action is absent?
Physician: Absolutely . . . because of the different
medical-legal relationship between the veteran pa-
tient and his physicians from that of a private pa-
tient, we must exercise even greater diligence to
avoid abridgment of the rights of the veteran pa-
tient.
Veterans Omnibus Health Care Act of 1976, Part 2: Hearing
Before the Subcomm. on Health and Hosps., Comm. on
Case: 23-2280 Document: 54 Page: 9 Filed: 05/02/2025

-- 9 of 13 --

HATFIELD v. COLLINS 10
Veterans’ Affs. Senate, 94th Cong. 601 (1976) (emphases
added).
One could construe that dialogue to suggest that Con-
gress intended a VA physician’s failure to adhere to the in-
formed consent requirements of § 4131 to subject the VA to
a “malpractice action”—i.e., a compensable claim for negli-
gence 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 relation-
ship, 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
38 C.F.R. § 17.34, § 4131’s implementing regulation. Sec-
tion 17.34 did not make any mention of VA benefits com-
pensation or negligence. 45 Fed. Reg. 6933, 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 or-
der to insure compliance with this section and other regu-
lations and to maintain the protection of the patients’
rights. (38 U.S.C. § 4131).” 38 C.F.R. § 17.34 (1980). (em-
phases added). That § 17.34(d) states that the Chief Med-
ical Director—a position housed within the VA—will
“insure compliance” with § 4131, suggests that the VA con-
strued § 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, 442 U.S. 560, 568 (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., 323 U.S. 134, 139–
40 (1944) (an agency’s interpretations “made in pursuance
of official duty . . . constitute a body of experience and in-
formed judgment to which courts and litigants may
properly resort for guidance”).
Case: 23-2280 Document: 54 Page: 10 Filed: 05/02/2025

-- 10 of 13 --

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 38 C.F.R. § 3.361(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. 67 Fed. Reg. 76322,
76323 (Dec. 12, 2002) (emphasis added). Present-day 38
C.F.R. § 17.32 is the amended version of § 17.34, § 4131’s
implementing regulation. 38 C.F.R. § 3.361(d)(1)(ii)’s for-
ward-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 Skid-
more, 323 U.S. at 134, 139–40.
* * *
In sum, none of the text, legislative history, or regula-
tory history of 38 U.S.C. § 351 and 38 U.S.C. § 4131
4 Although CUE is evaluated without regard to law
that post-dates the relevant Board decision, “the CUE in-
quiry 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, 127 F.4th at 1333 n.6 (Fed. Cir.
2025). Hatfield acknowledged as much at oral argument.
Oral Arg. at 11:35–11:53, available at https://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=23-2280_0305202
5.mp3.
5 Section 3.361(d)(1)(ii) was ultimately enacted in
2004, 69 Fed. Reg. 46426, 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.
Case: 23-2280 Document: 54 Page: 11 Filed: 05/02/2025

-- 11 of 13 --

HATFIELD v. COLLINS 12
establishes that it is undebatable that, in 1980, the VA’s
failure to obtain a patient’s informed consent before admin-
istering 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 compensa-
tion to veterans injured from negligent VA medical care.
Hatfield Br. 18 (citing King v. Burwell, 576 U.S. 473, 485
(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 stand-
ards 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 con-
sent, and thus the 1980 Board committed CUE by conclud-
ing 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 fundamen-
tally 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
Case: 23-2280 Document: 54 Page: 12 Filed: 05/02/2025

-- 12 of 13 --

HATFIELD v. COLLINS 13
must be.6 And as explained above, the separateness of
§ 351 and § 4131 in 1980 is reinforced by
38 C.F.R. § 17.34(d), which suggests that violation of
§ 4131 does not provide an injured veteran a private cause
of action for negligence. Touche, 442 U.S. at 568.
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 regula-
tory statement to read two separate provisions together in
the context of a legal-based CUE inquiry. The conse-
quences of a provision’s silence must be analyzed on a case-
by-case basis.
Case: 23-2280 Document: 54 Page: 13 Filed: 05/02/2025

-- 13 of 13 --