Melvin v. U.S. Dep't of Veterans Affairs

70 F.Supp.3d 350

Pamela Melvin, Plaintiff

v.U.S. Department of Veterans Affairs, et al., Defendants.

Civil No. 12–1501 EGS

United States District Court, District of Columbia.

Signed September 30, 2014

Pamela Melvin, Fayetteville, NC, pro se.

Laura Emily Jennings, Timothy E. Broomhead, Kevin Michael Laden, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, United States District Judge

Pro se plaintiff and veteran Pamela Melvin has filed Privacy Act and constitutional claims against the U.S. Department of Veterans Affairs (VA).¹ Am. Compl. (ECF No. 70). The VA moves to dismiss the Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim. Def.' s Mot. to Dismiss (ECF No. 74); Fed. R. Civ. P. 12(b)(1), 12(b)(6). Upon consideration of the motion, Plaintiff's response and the VA's reply, the entire record, and the applicable law, the Court GRANTS the VA's motion for the reasons set forth herein.

I. BACKGROUND

Pamela Melvin served in the United States Army in the 1970s. Am. Compl. ¶ 50. The allegations in her 76–page Amended Complaint are somewhat unclear, but the thrust of her lawsuit focuses on the treatment of her claims for VA benefits.

A. The Amended Complaint

The Amended Complaint primarily describes Plaintiff's attempts to claim benefits for post-traumatic stress disorder (PTSD) by filing for service-connected benefits, and her attempts to claim benefits for the treatment of her rheumatoid arthritis by filing a claim under 38 U.S.C. § 1151.² Further, the Amended Complaint describes several other grievances the Court must address.

1. The Claims.

Plaintiff lists eight causes of action in her Amended Complaint. As described as follows, each cause of action (COA) is labeled as a violation of the Privacy Act and claims willful and intentional violation of the Act. Moreover, most of the claims also allege constitutional violations, including denial of Plaintiff's access to the courts in violation of the First and Fifth Amendments:

• COA I: Privacy Act and constitutional violations for the VA's failure to respond to Plaintiff's July 2009 request to amend her PTSD claims, id. ¶ 239, and for failure to respond to her January 2011 requests for the Board's January 6, 2010 decision, id. ¶¶ 239, 243, 250, 261.

• COA II: Privacy Act and constitutional violations for the VA's failure to respond to Plaintiff's letters of 2011 and 2012 requesting records related to her § 1151 claim. Id. ¶¶ 275–76, 281–84, 286, 287.

• COA III: Privacy Act and constitutional violations for the VA's failure to provide primary care clinic information to Plaintiff after she sent the 2011 and 2012 letters requesting the records relating to her PTSD and § 1151 claims. Id. ¶¶ 292–99, 307. Plaintiff maintains the failures to respond to her requests for records left her without a means to challenge the failure to assign her a primary care clinic, thereby precluding her from appealing the VA's decision.Id. ¶¶ 301–08.

• COA IV: Privacy Act and constitutional violations for failure to respond to Plaintiff's July 2009 request to amend her PTSD claims and for failure to maintain her record to include the request. Id. ¶¶ 313–18, 320–22.

• COA V: Privacy Act and constitutional violations for the VA's intentional inclusion in her benefits record of the allegedly fraudulent July 2008 appeal of Plaintiff's § 1151 claim decided that same month, which she did not file, as well as the March 2009 decision regarding that appeal. Id. ¶¶ 331, 333, 336–39.

• COA VI: Privacy Act and constitutional violations for the VA's intentional exclusion from her benefits record of Plaintiff's July 2009 appeal of her § 1151 claim. Id. ¶¶ 343–45, 348–350.

• COA VII: Privacy Act violation for the VA's failure to assign Plaintiff a primary care clinic in 2010. Id. ¶¶ 353–362.

• COA VIII: Privacy Act violation for the VA's failure to provide to Plaintiff the audio tape of her August 2005 Board of Veterans' Appeals hearing, as well as the destruction of that tape. Id. ¶¶ 364–367.

Plaintiff seeks damages of $2–3 million per cause of action, attorney's fees, and any other relief the Court deems adequate and just. Id. at 75–76.

2. The PTSD Claim.

Ms. Melvin filed an application for service-connected compensation with the VA in 2001 claiming mental and emotional distress for sexual trauma during her military service; in 2005, the VA identified her claim as one for PTSD. Am. Compl. ¶¶ 50, 235. Her claim appears to have been considered and appealed to the Board of Veterans' Appeals. Id. ¶¶ 50–73. The ALJ heard the appeal on August 1, 2005 and remanded to the Winston–Salem Regional Office (“RO”) for, among other things, a medical evaluation for psychotic disorder. Id. ¶¶ 70–73. The medical evaluation took place in February 2007. Id. ¶¶ 111–142, 237. Sometime after this August 2005 hearing, Ms. Melvin supplemented her PTSD claim to include allegations about two distinct sets of sexual trauma incidents. Id. ¶¶ 75, 146.

Because Plaintiff included additional information for consideration of her PTSD claim after her August 2005 hearing, she sent a letter requesting another hearing before the Board of Veterans' Appeals. Id. ¶ 146. In response, Ms. Melvin alleges the Board of Veterans' Appeals sent her a document by which she could request a hearing, which she completed and returned. Id. ¶ 147. Plaintiff claims she never received an additional hearing. Id. ¶ 148.

In October 2009, Ms. Melvin inquired about the status of her PTSD claim by calling the VA's toll-free hotline. Id. ¶¶ 179–180. She alleges the representative on the call informed her that the PTSD appeal was still pending. Id. The Appeals Management Center allegedly denied her appeal in September 2009, and the Board of Veterans' Appeals issued a final decision denying her PTSD claim on January 6, 2010. Id. ¶¶ 197, 148.

Ms. Melvin did not learn of this outcome in 2010, and only learned of the decision when she called the VA's toll-free hotline in January 2011 for an update on her benefits claims. Id. ¶¶ 181–182, 240, 241. Ms. Melvin made several calls to the VA during January 2011. Id. ¶¶ 181, 196. During these calls Plaintiff requested, among other things, a copy of the January 2010 decision. Id. ¶ 202. Each representative responding to her calls indicated there was no written record of the decision. Id. ¶ 208. Ms. Melvin also promptly sent several letters to different VA officials and offices requesting records related to her PTSD claim. Id. ¶¶ 186–190, 203–07. She sent additional letters requesting her PTSD claim records in April 2011, id. ¶¶ 211–16, 270–71, and again in January and February 2012, id. ¶¶ 217–220, 272–73.

Aware of the 120–day appeal window, Plaintiff believed her opportunity to challenge the decision had closed even though she had not timely received the January 2010 decision. Id. ¶¶ 244–48, 251. Nevertheless, in one of her January 2011 letters requesting a copy of the decision, she attempted to notify the VA that she wanted to appeal the January 2010 decision. Id. Ex. G. Plaintiff alleges she received the January 6, 2010 decision for the first time in March 2012. Id. ¶¶ 221, 223, 244.

3. The 38 U.S.C. § 1151 Claim.

In addition to the PTSD claim Ms. Melvin filed in 2001, the Amended Complaint also describes a benefits claim filed in May 2007 with the Winston–Salem RO. In that claim, Plaintiff requested compensation under 38 U.S.C. § 1151 for the rheumatoid arthritis treatment she had received at VA hospitals. Am. Compl. ¶¶ 149, 325. In July 2008, the RO denied the § 1151 claim. Id. ¶¶ 150, 326. In July 2009, Plaintiff timely appealed. Id. ¶¶ 151, 153, 327, 328. With her appeal, she also enclosed a letter seeking to amend her records pertaining to the PTSD claim to include additional facts and to challenge the inclusion of allegedly false statements from the doctor who performed her February 2007 medical evaluation. Id. ¶¶ 154–56, 238, 313.

Plaintiff did not receive a response from the VA regarding her July 2009 request to amend her records. Id. ¶¶ 239, 314. She contends this failure to act or to amend her record was intentional or willful. Id. ¶ 315. Ms. Melvin alleges the VA instead sent her a letter scheduling a medical reevaluation for her service-connected claim. Id. ¶¶ 159–160. She did not attend the scheduled medical examination, however, because she allegedly feared her medical records would be falsified as they allegedly were during her February 2007 evaluation. Id. ¶ 161.

During her January 2011 calls to the VA's toll-free hotline, Plaintiff also inquired about her § 1151 claim and learned her file contained an appeal, dated on or around July 2008, of the VA's decision on that § 1151 claim. Id. ¶¶ 196–97, 329. Plaintiff contends she did not file this July 2008 appeal. Id. ¶¶ 200, 230. She maintains the VA intentionally included in her file the July 2008 appeal she did not file. Id. ¶¶ 336–37. The VA denied this July 2008 appeal in March 2009. Id. ¶ 197. Plaintiff's § 1151 claim was allegedly closed after she did not appeal the March 2009 decision. Id. ¶ 278.

Plaintiff further contends the VA hotline representatives each informed her that there was no record of her July 2009 appeal of the § 1151 claim or a request to amend her records. Id. ¶ 201.

One of Ms. Melvin's January 2011 letters to VA officials, referenced above, requested a copy of the March 2009 decision. Id. ¶¶ 203–06, 330. The VA did not respond to her request. Id. ¶ 207. Ms. Melvin's letters of April 2011, January 2012, and February 2012 repeated her request for records relating to her § 1151 claim. Id. ¶¶ 211–220, 270–72. She sent yet another letter requesting these records in June 2012. Id. ¶¶ 224–25. In March 2011, Plaintiff alleges she ultimately received a copy of the March 2009 decision. Id. ¶¶ 209, 330.

4. Other Grievances.

Plaintiff's Amended Complaint raises two other issues. First, she alleges she has been denied assignment to a primary care clinic. Plaintiff registered for enrollment for on-going...