The opinion of the court was delivered by: JAN DUBOIS, District Judge
ORDER AND MEMORANDUM
AND NOW, this 3rd day of March, 2004, upon
consideration of the United States' Motion for Summary Judgment (Document
No. 13, filed January 2, 2004), following a hearing on November 13, 2003,
with both parties present, IT IS ORDERED that Defendant's
Motion for Summary Judgment is GRANTED.
Plaintiff, an Army veteran, filed the Complaint in this case on August
8, 2003. The gravamen of the Complaint is plaintiff's belief that he is
entitled to 100 percent service connected disability benefits retroactive
to his discharge from the Army in 1946. See Tr. of Nov. 13,
2003 Hr'g at 12. Plaintiff's claims relate to alleged improper medical
treatment for a number of
ailments, alleged errors made by the Department of Veterans Affairs
("DVA") in his medical records, and decisions made by the DVA as to the
severity and service connected nature of his disability.
From the Complaint, it is difficult for the Court to determine the
legal basis of plaintiff's claims. However, when considering the
sufficiency of a pro se plaintiffs complaint, the Court must be
mindful that pro se plaintiffs are not held to as high a
pleading standard as other litigants and pro se pleadings must
be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
Counts one and two of the Complaint assert claims for medical
malpractice. Counts three and five challenge benefits determinations made
by the DVA. Count four alleges that the DVA refused to provide plaintiff
with copies of his medical record. In count six, plaintiff contends that
defendant made errors in his Department of Veterans Affairs Adjudication
and Veterans Record ("Veterans Records"). Count seven reiterates the
allegations in counts one, two, three, four, and five. Thus, the Court
will treat that part of count seven which deals with allegedly negligent
medical treatment similar to counts one and two as a tort
claim. That part of count seven that alleges errors in plaintiff's
Veterans Record will be treated the same as count four. That part of
count seven that challenges DVA benefits decisions will be considered
with counts three and five. Counts eight and nine assert that defendant
discriminated against plaintiff on the basis of his race and that the DVA
procedures for determining his service connected benefits denied him his
Constitutional due process rights.
Defendant moved for summary judgment, asserting, inter alia,
that this Court does not have jurisdiction to review DVA benefits
determinations and that plaintiff's remaining claims are either moot,
barred by sovereign immunity, or barred by plaintiff's failure to exhaust
administrative remedies. Mot. for Summ. J. at 2, 9, 11. For the
reasons set forth in this Memorandum, the Court grants defendant's Motion
for Summary Judgment.
B. PLAINTIFF'S MEDICAL HISTORY
Plaintiff, pro se, is an eighty-one year old veteran of the
United States Army ("Army") of African American ancestry. Compl. ¶ 2.
He was recruited by the Army to perform in an "all black Army band" in
December of 1942 (Id. ¶ 4) and was inducted into the Army
on January 22, 1943. Id. ¶ 6.
On November 17, 1945, while still in the Army, plaintiff developed
"complete right facial paralysis" and was hospitalized until January 15,
1946. Id. ¶ 7-8. Despite his claim that "his right facial
paralysis made it impossible for [him] to play the trumpet," plaintiff
was returned to active duty and the band on January 17, 1946.
Id. ¶¶ 8-10. According to plaintiff, he received no further
treatment for this condition despite the fact that "his face remained
twisted, his eyes watered, and he drooled incessantly" and "was never
able to pay the trumpet again." Id. ¶ 11.
In addition to the claimed inadequate medical treatment, plaintiff
asserts that defendant made a number of errors in his Veterans Records.
Specifically, he argues that his record does not mention his "service
connected illness [facial paralysis] or his loss of occupational
speciality [ability to play the trumpet]." Id. ¶ 12.
Plaintiff also claims: (1) that an "Authorization for Furnishing Medical
or Dental Services dated October 1, 1946" incorrectly states that he
received treatment for Bell's Palsy right, instead of Bell's Palsy left;
(2) that his records state he left music school for "personal reasons,"
even though he was receiving treatment for panic attacks; (3) that his
record incorrectly states he was treated for a left shoulder condition;
and (4) that a 1948 DVA report does not mention his left facial history
and incorrectly describes his treatment history.
Compl. ¶¶ 20, 21, 22, 27.
According to plaintiff, he was given a "convenience of the government
discharge" on May 12, 1946. Id. ¶ 14. Prior to his
discharge, plaintiff says he was told to sign a "claims form" and assured
that "his medical condition would be taken care of by the defendant."
Id. ¶ 13. In addition, he "was obliged to sign pension and
compensation documents that stated that upon discharge plaintiff was not
to receive hospitalization or domiciliary care by the U.S. or any
political subdivision thereof." Id. ¶ 14.
After his discharge, plaintiff claims he began experiencing panic
attacks. The first attack occurred on June 1, 1946, and plaintiff
received treatment from a private physician. Id. ¶ 15.
After the third panic attack, plaintiff allegedly reported to a DVA
mental hygiene clinic in Detroit, Michigan. Id. ¶ 16. At
about the same time, plaintiff contends he also developed left facial
paralysis. Id. ¶ 19. Over the next year, plaintiff claims
his condition worsened and he was forced to quit music school.
Id. ¶ 21. By September 27, 1947, plaintiff asserts that he
was hospitalized "unable to talk and totally out of touch with
reality, confined to bed, suffering conversion reactions, anxiety,
feelings of impending danger to himself and to others, tremors, tensions,
hyperhidrosis, symptoms of distress, belching gas and palpitations of the
heart." Id. ¶ 25.
Over the ensuing decades, plaintiff describes continuing health
problems and repeated attempts by the DVA to deny him the benefits he
claims he deserved. In 1958, plaintiff says he was "sedated and locked up
with the mentally insane" during a hospitalization in Detroit, Michigan.
Id. ¶ 29. In 1968, plaintiff suffered from a body rash and
panic attacks and contends that the DVA again denied his claim for
disability benefits related to these conditions. Id. ¶ 30.
When he asked the DVA for a copy of his Veterans Record in November of
2002, he claims he
was informed that the DVA had lost the file. Id. ¶
The DVA's account of plaintiff's request for his file and its
description of plaintiff's benefits history differs from plaintiff's
version of the facts in a number of respects. Defendant provided the
Court with a three volume, 2,135 page copy of plaintiff's Veterans
Record. The record details plaintiff's medical treatment and his
administrative proceedings before the DVA. According to his Veterans
Record, plaintiff reviewed his file on a number of occasions and received
a copy of the file on at least six occasions.*fn1 In addition, a copy of
plaintiff's Veterans Record was sent to the office of Senator Arlen
Specter at plaintiff's request. Mot. for Summ. J. at Exhibit A ¶ 20
(Declaration of Gary Hodge, Supervisory Veterans Service Representative,
Department of Veterans Affairs); Department of Veterans Affairs
Adjudication and Veterans Record for John S. Duke ("Vets. Rec.") at 1423.
Finally, in a declaration attached to defendant's Motion, Gary Hodge, a
Supervisory Veterans Service Representative for the DVA, describes a
November 21, 2003 meeting with plaintiff and Assistant United States
Attorney Nancy Griffin, defendant's attorney. At this meeting, plaintiff
was offered another copy of his Veterans Record but, according to Hodge,
"indicated" that he already had a copy. Exh. A ¶ 21.
C. PLAINTIFF'S DVA BENEFITS HISTORY
Plaintiff's Veteran's Record contains transcripts, records, and
decisions relating to plaintiff's benefits proceedings before the DVA.
Hodge, "an employee of the [DVA] with
substantial experience with [DVA] benefits," summarizes these
proceedings in his declaration. Mot. for Summ. J. at 2 & Exhibit A
¶ 1-3 (Declaration of Gary Hodge, Supervisory Veterans Service
Representative, Department of Veterans Affairs). According to this
summary and plaintiff's Veterans Record:
Plaintiff was honorably discharged from the Army in May of 1946. Ex. A
¶ 3 and Vets. Rec. at 6, 1419. A report of his last physical
examination prior to discharge lists a diagnosis of "Bell's palsy, right
side of face" and gives an onset date of November 1945 for this
condition.*fn2 Vets. Rec. at 34, block 11. There is no evidence in this
report of a psychiatric disorder. Id. at block 32.
After plaintiff's discharge, the DVA initially gave plaintiff a 10
percent disability rating*fn3 for his Bell's Palsy effective May 12,
1946. Ex. A ¶ 5, Vets. Rec. at 656. This rating was increased to 30
percent effective May 12, 1946, by a rating decision dated September 18,
1946. Ex. A ¶ 5, Vets. Rec. at 568.
On April 29, 1969, Mr. Duke submitted a claim to the DVA requesting
service connection*fn4 for a mental disorder as secondary to his service
connected Bell's Palsy. The DVA denied service connection in a rating
decision dated April 22, 1970 on the ground that there was
no record of mental illness while he was in the service, within one
year of discharge, or as secondary to his Bell's Palsy. Ex. A ¶ 6,
Vets. Rec. at 1247-1248.
On March 18, 1987, Mr. Duke filed another claim for service connection
for his mental disorder as secondary to his Bell's Palsy. On November 14,
1987, the DVA granted service connection for his anxiety disorder, and
this disorder was assigned a disability rating of 30 percent effective
March 18, 1987. Ex. A ¶ 7, Vets. Rec. at 1416-18. When this
disability rating was combined with the disability rating for his Bell's