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DUKE v. U.S.

March 3, 2004.

JOHN S. DUKE, Plaintiff,

The opinion of the court was delivered by: JAN DUBOIS, District Judge

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 Page 2 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 (1972).

  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 Page 3 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.


  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. Page 4 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 Page 5 was informed that the DVA had lost the file. Id. ¶ 34-35.

  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.


  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 Page 6 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 Page 7 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 Palsy, ...

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