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Eddy Philippeaux v. the United States of America

September 27, 2011


The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge


Plaintiff Eddy Philippeaux, appearing pro se, brings this action against the United States of America, asserting claims for, inter alia, misrepresentation and deceit, violation of his constitutional right to due process, retaliation and spoliation, medical malpractice, infliction of emotional distress and violation of the Privacy Act, 5 U.S.C. § 552(a). The genesis of this action was the May 25, 2010 decision of the Department of Veterans Affairs ("VA") to reject plaintiff's claim for veteran's benefits.

Pending before the Court is defendant's motion to dismiss plaintiff's second amended complaint ("SAC") pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, defendant asserts that the Court lacks subject matter jurisdiction over: (1) plaintiff's challenge to the denial of VA benefits; (2) plaintiff's Federal Tort Claims Act ("FTCA") claim based on misrepresentation and deceit; (3) plaintiff's due process claim; (4) plaintiff's spoliation and retaliation claims; (5) plaintiff's FTCA claim based on medical malpractice; and (6) plaintiff's FTCA claim for infliction of emotional distress. Further, defendant asserts that plaintiff's Privacy Act claim should be dismissed for failure to state a claim pursuant to Rule 12(b)(6).

For the reasons set forth below, the defendant's motion to dismiss plaintiff's SAC is granted. It should be noted that this does not prevent plaintiff from obtaining review of the denial of his claim for benefits. The Veterans' Judicial Review Act (the "VJRA") establishes a multi-tiered adjudicatory system. However, federal district courts are not part of that statutory structure. Further, for claims which may be asserted against the United States under the FTCA, plaintiff must comply with the administrative exhaustion requirements of the Act.


A. Factual Background*fn1

Plaintiff is a veteran of the United States military who served honorably in the Navy from September 27, 1972 to October 1, 1980, and in the Air Force from April 20, 1984 to May 30, 1985. See SAC, Rating Decision, Ex. E. On December 21, 2009, plaintiff filed a claim for benefits with the VA. Id. at 1. Plaintiff claimed that he suffered a traumatic brain injury ("TBI") while on active duty in the U.S. Navy in 1977. See SAC at 3. In response to his claim, "a compensation and pension examination ("C&P Exam") was requested." Id. at 4.

On February 26, 2010, Dr. Erin Johnson, a resident physician at the VA, noted that plaintiff had "brought records from his military service . . . which detailed a head injury in 1977," which had been caused by plaintiff's walking into a wall. Ex. H 75.*fn2 Dr. Johnson conducted a TBI screen and referred plaintiff for further TBI and neuropsychological testing. Id. On March 12, 2010, before this additional testing had taken place, plaintiff arrived at Dr. Johnson's clinic without an appointment and "[r]equested a letter describing that his possible TBI was related to his head injury sustained in the military; stated he needed this letter right away since they were expediting his case." Id. at 73. Dr. Johnson provided a letter stating that plaintiff "reported a history of a trauma to his head which he sustained in the military; he has showed this writer records indicating that he did sustain a head injury during his service time." Id.

On March 17, 2010, as requested by Dr. Johnson, plaintiff first met with Dr. Anna Nedelisky for a neuropsychology consultation. Id. at 72. At their second meeting on March 22, 2010, Dr. Nedelisky noted plaintiff's "expectations for federal compensation for past head injury in the thousands of dollars, and a guarantee of a federal job with no competition." Id. at 71. On April 8, 2010, plaintiff received Dr. Nedelisky's recommendations, which included, among other things, continued psychiatric treatment and medication, occupational therapy, group activity, and better sleep hygiene. Id. at 64-65. On April 14, 2010, Dr. Nedelisky filed her full Neuropsychology Report. Id. at 56-65. She concluded that plaintiff's "current cognitive difficulties are not related to the incident of running into a sharp section of wall in the 1970s." Id. at 63.

On March 15, 2010, Dr. E. Hiesiger examined plaintiff in order to prepare the C&P Exam report used to evaluate plaintiff's claim for benefits. Plaintiff was able to retrieve an unsigned copy of Dr. Hiesiger's report dated March 19, 2010. See Exh. L. The report notes that plaintiff's medical records, namely the C-file, were "not available" for review. Id. at 1. Under the heading "Diagnosis," the document says "organic mental syndrome secondary to TBI." Id. at 4. Under the heading "Diagnostic and Clinical Tests," the document says "N/A." Id. For "psychiatric manifestations" it states "N/A," and it lists nothing after the heading "assessment of cognitive impairment and other residuals of TBI not otherwise classified." Id. at 3.

In his opposition to the motion to dismiss, plaintiff also includes a second C&P Exam report by Dr. Hiesiger dated May 7, 2010, which plaintiff alleges was prepared on April 15, 2010. See Ex. O. This report includes the information omitted or listed as unavailable in the March 2010 C&P Exam report. It notes "C-file reviewed" and "no neurological complaints in the C file," and it quotes the records from plaintiff's 1977 accident. Id. at 1. For "psychiatric manifestations" and "assessment of cognitive impairmet [sic] and other residuals of TBI not otherwise classified" it refers to an "attached neuropsych evaluation." Id. at 3. Under the heading "Diagnostic and Clinical Tests," the document includes a CT image report and Dr. Nedelisky's final report. Id. at 4-18. The diagnosis in this document states: "No diagnosis of traumatic brain injury[.] Based on the documentation in the C file, the incident on 10/12/1977 does not meet the criteria for TBI. There is no documentation of any symptoms indicative of a traumatic brain injury." Id. at 6.

On May 25, 2010, the VA determined that the TBI for which plaintiff sought compensation "neither occurred in nor was caused by service." Ex. Q at 4. In making its determination, the VA reviewed and considered, among other evidence: plaintiff's treatment records from his periods of military service; the findings from a CT scan administered by the VA on March 12, 2010; the TBI preliminary examination findings of Dr. Hiesiger dated March 15, 2010; the neuropsychiatric examination findings of Dr. Nedelisky, dated April 14, 2010; and the final New York VA examination report signed and released by Dr. Hiesiger on April 15, 2010. Id. at 2-3. In its decision, the VA stated that "[a]ny discrepancies found between examinations dated March 15, 2010 may be attributed to the fact that any examination findings printed prior to April 15, 2010 are not a final report." Id. at 3-4.

B.Allegations in the SAC

On August 17, 2010, plaintiff initiated this lawsuit against the United States of America and various other defendants. On December 6, 2010, plaintiff filed the SAC, which named the United States of America as the only defendant.

The SAC requests that the Court review various decisions of the VA related to plaintiff's health, medical records, and the decision to deny plaintiff's December 2009 claim for benefits. It alleges that Dr. Hiesiger's March TBI examination report diagnosed plaintiff with a TBI, that Dr. Nedelisky falsified her report to conclude that plaintiff had not suffered a TBI, and that Dr. Hiesiger's reliance on Dr. Nedelisky's report wrongfully prevented plaintiff from receiving VA compensation.

According to plaintiff, VA personnel constructed a falsified medical record in order to sabotage plaintiff's claim for compensation in retaliation for an earlier complaint he filed against the VA for compromising the security of his service records.

Plaintiff also alleges that Dr. Nedelisky and Dr. Hiesiger committed medical malpractice "in providing conflicting and opposite diagnosis." "In the absence of the wrongful acts by the doctors and other VA employees, plaintiff's homelessness would have stopped, his general mental and physical health status would have stabilized and not getting worse, in fact, one could say that he would have been back on track to potential recovery." SAC at 9. Plaintiff claims to have sustained emotional distress because the "illegal document (Compensation & Pension Examination Report dated April 15th, 2010) . . . was in fact used by the Veteran Rating Service Representatives as the sole basis to deny plaintiff's trauma brain injury claim in a rating decision dated June [sic] 25th, 2010." Id. at 10.

Furthermore, plaintiff alleges that Dr. Heisiger and Dr. Nedelisky, as well as other government employees, "acting under color of law, deprived plaintiff of rights secured by the United States Constitution or Federal Statutes when they did in fact knowingly used [sic] an illegal C&P Medical Examination Report dated April 15th, 2010 to adjudicate plaintiff's claims." Id. at 57-58.

Finally, plaintiff alleges that VA personnel compromised the security of his service records by leaving the records in an unsecured, public area. He further alleges that visitors to the hospital and other member of the public could have accessed, viewed, or removed records necessary to his Title 38 claims. See SAC at 30-31.

As noted earlier, defendant filed a motion to dismiss plaintiff's SAC in its entirety for lack of subject matter jurisdiction and in some respects, for failure to state a claim.


I.Legal Standards

A. Rule ...

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