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MOZUR v. TURNAGE

January 11, 1990

Robert S. Mozur
v.
Thomas K. Turnage



The opinion of the court was delivered by: DUBOIS

 JAN E. DUBOIS, UNITED STATES DISTRICT JUDGE

 Plaintiff Robert S. Mozur is a World War II veteran who received Veterans Administration ("VA") disability compensation benefits from 1944 to 1957 for a nervous disorder which the VA determined was "service incurred." In 1957 these benefits were terminated after the VA reexamined Mr. Mozur's case and concluded that his nervous disorder was not service-incurred but, rather, preexisted his military service. After numerous efforts by Mr. Mozur at both the administrative and federal district court levels to challenge this conclusion, the VA, on June 8, 1988, agreed that plaintiff's disorder was service incurred and awarded, pursuant to 38 U.S.C. § 3010(i) *fn1" and 38 C.F.R. 3.400(g), *fn2" disability payments back to June 14, 1984.

 In plaintiff's present suit against Thomas K. Turnage, Administrator of Veterans Affairs, *fn3" he alleges that he is entitled to disability compensation benefits back to 1957. The defendant has moved to dismiss or, in the alternative, for summary judgment, and the plaintiff has moved for summary judgment. For the reasons given below, Defendant's Motion to Dismiss will be granted on the ground this Court lacks subject matter jurisdiction over plaintiff's claims.

 I.

 Plaintiff was inducted into the Army Air Corps (now known as the Air Force) on December 22, 1942. He was first diagnosed with a mental impairment -- "psychoneurosis, mixed type severe" -- in 1943 during a period of active military service. On June 28, 1943, he was given a disability discharge from the service under honorable conditions. In 1944 plaintiff applied for and received service-connected disability compensation benefits pursuant to 38 U.S.C. § 310.

 Plaintiff continued to receive service-incurred disability benefits until July 6, 1956, at which time the VA reevaluated plaintiff's case. Upon such review, the VA Rating Board, on January 15, 1957, terminated plaintiff's service-incurred disability benefits, *fn4" concluding that plaintiff's nervous condition was not incurred in or aggravated by his service in WWII.

 In an attempt to persuade the VA to reinstate service-incurred disability benefits, plaintiff submitted further documentary evidence to the VA and filed an appeal with the Board of Veteran Appeals (BVA). The BVA upheld the Rating Board decision and notified plaintiff of this on August 15, 1957.

 Between 1957 and 1980 plaintiff continued to submit additional evidence in an attempt to have the Rating Board decision reversed; however, he did not formally attempt to reopen his claim. *fn5" During this period, the VA Rating Board consistently ruled that the evidence submitted by the plaintiff was not new and material evidence necessary to reopen the claim.

 On January 14, 1980, and with the assistance of counsel, plaintiff formally sought to reopen his claim. The Rating Board ruled that there was no new and material evidence which would justify such a reopening. After an appeal by plaintiff, the Board confirmed this decision. On June 24, 1981, the BVA agreed to review the case de novo, and on January 15, 1982, it affirmed the Rating Board decision.

 Thereafter, because statements in plaintiff's Air Force records were relied upon by the BVA in its decision to deny benefits, plaintiff applied to the Air Force to correct his military records so as to state that his nervous disorder was service connected. The Air Force initially refused to make this correction; consequently, plaintiff brought suit in federal district court. The district court ruled that the Air Force had failed to evaluate properly the relevant evidence and remanded the matter for further agency evaluation. Mozur v. Orr, 600 F. Supp. 772 (E.D.Pa. 1985). Thereafter, the Air Force Board for Correction of Military Records (BCMR) reexamined plaintiff's claims and determined that his nervous disorder did not exist prior to service. Instead of formally expunging plaintiff's record, however, the Air Force corrected his military record through a written summary.

 On June 10, 1985, after the military record was corrected, plaintiff once again requested a reopening of the VA's decision to discontinue his service-incurred disability benefits. The Rating Board concluded that the BCMR decision did not, in and of itself, establish plaintiff's entitlement to service-incurred disability benefits; consequently, on November 14, 1985, the Rating Board confirmed its prior decision that plaintiff was not deserving of such benefits. Shortly thereafter, the plaintiff received two letters from the VA in which plaintiff was told that the BCMR had determined that plaintiff's mental disorder existed prior to service.

 Plaintiff then appealed to the BVA which issued a decision remanding for clarification as to which entries in the service records were changed by the BCMR decision. At that time the plaintiff also contacted the Air Force and requested that it issue him a new formal discharge and/or delete references in his military record inconsistent with its prior corrective action. When this request was refused, plaintiff, on November 4, 1987, brought this action against both the Administrator of the VA and the Secretary of the Air Force. He requested that this Court hold the VA's practices unconstitutional, issue an injunction requiring the Air Force to expunge plaintiff's record, and issue an injunction requiring the VA to reevaluate plaintiff's claim for service-incurred disability benefits.

 On November 10, 1987, the Air Force formally deleted reference to its early conclusion that plaintiff's disorder existed prior to service. The parties subsequently agreed to dismiss ...


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