The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Plaintiff Oscar Thomas is a retired Army veteran who has, with mixed success, repeatedly sought benefit payments from the Department of Veterans Affairs ("VA") for physical and mental health conditions that he believes are connected to his military service. In this case, brought pro se, he sues R. James Nicholson, Secretary of VA,*fn1 raising malpractice and other tort claims based on a medical examination conducted by a VA doctor in 1991 and his visits to the VA Medical Center in Memphis, Tennessee. The VA moves to dismiss, and to the extent any claim survives dismissal, the VA seeks summary judgment. See [Dkt. #121].
The Court will grant the motion to dismiss based on the failure to exhaust administrative remedies under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq. Further, summary judgment will be granted to the VA on the claims surrounding the failure of Memphis VAMC to provide medical attention to Mr. Thomas in November 2002. With this disposition, all other pending motions will be denied as moot.*fn2
Mr. Thomas filed a claim for disability compensation with the VA on August 14, 1989, based, in part, on anxiety neurosis. As a result, on March 5, 1991, he was examined by Dr. A.R. Kelly, a VA psychiatrist at the Washington, D.C., VA Medical Center. In his report of the examination, Dr. Kelly noted that Mr. Thomas had complained of regularly hearing voices in his head since about 1978 or 1979, which had persisted up to the date of the examination. However, because Mr. Thomas had "no other particular signs of schizophrenia," Dr. Kelly stated only that "a diagnosis of schizophrenia probably is the most likely correct diagnosis" without making a definite diagnosis. Def.'s Mem. in Supp. of Mot. to Dismiss or For Summ. J. [Dkt. #121] ("Def.'s Mem."), Ex. 2. Critically, however, he did not share this possible diagnosis with Mr. Thomas.
By a rating decision dated August 2, 1991, the VA granted Mr. Thomas a 40% combined disability rating for those conditions it determined to be service connected. Def.'s Mem., Ex. 3. It stated that "[s]ervice connection is denied for anxiety neurosis, as the last psychiatric examination in service made no diagnosis regarding the veteran's mental status [and] [o]n the VA exam [conducted by Dr. Kelly], a final diagnosis was not made." Id. The August 1991 rating decision also did not mention the possibility that Mr. Thomas suffered from schizophrenia. The VA sent a Notification Letter on August 19, 1991, Def.'s Mem., Ex. 6, to Mr. Thomas's Service Representative, the Non-Commissioned Officers Association, which sent it to Mr. Thomas. See Plaintiff's Second Renewed Statement of Material Facts as to Which There Can Be No Genuine Dispute [Dkt. #96] ("Pl.'s Facts") ¶¶ 10-11.
Mr. Thomas filed what he deemed to be new material evidence in support of his claims of a service-connected disability on April 14, 1994. Def.'s Mem., Ex. 9. The Ratings Office found that the evidence submitted was not new and that it had been previously considered. Id., Ex. 10. On November 10, 1999, Mr. Thomas appealed the adverse ratings decision to the Board of Veterans Appeals. In the course of various disagreements over the Rating Office's determinations, Mr. Thomas received the VA's Statement of the Case ("SOC"). The SOC informed Mr. Thomas for the first time that the VA had identified a "working diagnosis" of schizophrenia on March 5, 1991.*fn3
Thereafter, on October 11, 2001, Mr. Thomas filed an administrative claim on Form SF 95 with the U.S. Army Office of the Staff Judge Advocate, 1st Infantry Division, Katterbach Law Center, Germany, alleging that he had found out on October 27, 1999, that the VA had since August 10, 1991, willfully and intentionally withheld from him information concerning a serious medical condition which had caused him to suffer intentional emotional distress, exacerbation of his condition, and denial of federal and state benefits (the "2001 Claim"). Def.'s Mem., Ex. 14. The VA denied the 2001 Claim on August 26, 2002:
Under the Federal Tort Claims Act (FTCA), VA is responsible for any negligent or wrongful acts or omissions by VA employees acting within the scope of their employment which have caused death, personal injury, and/or property damage. After reviewing of our files and the materials you submitted in light of the issues you raised in your claims, we have found no such negligent or wrongful acts or omissions. Moreover, determinations regarding veteran's benefits are not reviewable under the FTCA. See Title 38 United States Code, Section 511(a). Accordingly, your claims are hereby respectfully denied.
Mr. Thomas filed this suit on August 30, 2002, alleging thirteen counts. The District Court dismissed the case on May 28, 2003. Mr. Thomas appealed, and the D.C. Circuit affirmed the dismissal on all but three counts - Counts III, V, and X. With regard to these Counts, the Circuit reversed and remanded, holding that the trial court had jurisdiction to consider non-benefits claims, i.e., "whether the alleged withholding of the diagnosis [of schizophrenia] states a tort claim." Thomas v. Principi, 394 F.3d 970, 974 (D.C. Cir. 2005); see also United States v. Brown, 348 U.S. 110 (1954) (a veteran may maintain an action under the FTCA for negligent treatment at a VA medical center even if his benefits have already been increased because of such injury); Glarner v. U.S. Dep't of Veterans Admin., 30 F.3d 697 (6th Cir. 1994).
On remand, Mr. Thomas filed a First Amended Complaint on March 1, 2006. The First Amended Complaint*fn4 alleges the following Counts:
Count I, failure to diagnose, inform, warn, and/or refer for treatment based on:
d. Type B personality disorder
e. brain cancer or disease