Slotnick v. United States

8 Cl. Ct. 784, 1985 U.S. Claims LEXIS 906
CourtUnited States Court of Claims
DecidedSeptember 30, 1985
DocketNo. 324-85C
StatusPublished
Cited by5 cases

This text of 8 Cl. Ct. 784 (Slotnick v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Slotnick v. United States, 8 Cl. Ct. 784, 1985 U.S. Claims LEXIS 906 (cc 1985).

Opinion

OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

REGINALD W. GIBSON, Judge:

The plaintiff, Army Air Force veteran Samuel Slotnick, appears in this action pro se1 seeking retroactive disability compensation for an allegedly defective 1949 veterans’ benefits determination. Plaintiff also alleges that due to the erroneous disability benefits determination, his medical treatment has been less than adequate, causing his condition to degenerate, for which he seeks an award for future medical care. Defendant, without addressing the merits of plaintiff’s claim, has asserted that plaintiff’s claims are barred equally by this court’s six-year statute of limitations, 28 U.S.C. § 2501,2 and the “no review” provision of 38 U.S.C. § 211(a).3 We agree with defendant on both points, and because each [786]*786of these statutes imposes a bar on this court’s jurisdiction, relative to the issues raised by the complaint, we grant the defendant’s motion and dismiss this action.

FACTS

From the submissions of the parties, the following facts are found not to be in dispute. The plaintiff is a former member of the U.S. Army Air Force who served on active duty from April 1943 through November 15,1944. Plaintiff’s clinical record, relating to his discharge, states that plaintiff’s separation was recommended due to a diagnosis of idiopathic epilepsy.

Following his discharge, plaintiff applied for and was awarded by the Veterans Administration (VA) monthly monetary disability payments effective April 18, 1949. The letter notifying plaintiff of his award explained that “[t]his award has been made to you for: Service connected disability of 10% for your nervous condition.” Plaintiff was further informed that should he not agree with the award he had a right to appeal to the VA Regional Office in Boston within one year.

Some thirty-four years later, .on June 6, 1983, plaintiff approached the VA for a reopening of his claim due to ongoing epileptic seizures that had then resulted in plaintiff losing his job. The doctor for the VA examined the plaintiff and submitted a current diagnosis stating plaintiff’s condition as a “generalized seizure disorder” concurrent with “diabetic autonomic neuro-pathy and peripheral polyneuropathy.” Based upon that diagnosis, plaintiff’s disability compensation award was raised to a 20% disability on August 9, 1983, with a higher monthly benefit payment.

From the 20% disability rating issued on August 9, 1983, plaintiff formally appealed to the Board of Veterans Appeals (BVA) in February of 1984. In his petition, plaintiff stated he sought “his rightful benefits” from April 14, 1949. The BVA, however, construed plaintiff’s appeal to be a clairn for an entitlement for an “increased rating for generalized seizure disorder.” Upon examination of plaintiff’s case, the BVA denied plaintiff’s appeal and refused to upgrade plaintiff’s entitlement on January 16, 1985.

On January 30, 1985, plaintiff again sought VA benefits stemming from his 1949 illness. This time, however, the claim was characterized by the VA as a “claim for service connection for cerebellar degeneration secondary' to seizure disorder.” This allegation appears to relate to the further degeneration of plaintiff’s condition occurring since the previous August 9, 1983 VA determination. No copies of this claim, nor the record of plaintiffs subsequent examination on March 18, 1985, however, have been filed with the court. Plaintiff’s January 30, 1985 claim was denied by the VA on May 2, 1985, and plaintiff received notification by letter dated May 21, 1985.

On May 24, 1985, plaintiff filed a notice of disagreement with the VA requesting copies of any evidence relied on by the VA in denying plaintiff’s January 30, 1985 claim. The VA responded with a “Statement of the Case” on June 25, 1985, containing a summary of the evidence and a schedule of the laws and regulations involved. The statement also contained an appeal form.

In the meantime, on May 25, 1985, plaintiff wrote to the BVA requesting further relief from the May 21, 1985 denial. Plaintiff, shortly thereafter, also filed a complaint in this court on May 30, 1985, seeking various monetary and medical benefits. Kenneth E. Eaton, Chairman of the BVA, responded to plaintiff’s May 25, 1985 letter on June 20, 1985. Therein, Mr. Eaton stated that “[i]n view of the matters presented, I am recalling the Claims folder from the Boston Regional Office, and I will be in touch with you later.” No further facts are available following Mr. Eaton’s letter.

The parties have filed cross-motions for summary judgment, each alleging the absence of genuine issues of material fact, and, concomitantly, requesting judgment as a matter of law. In the subsequent preliminary proceedings before this court, the [787]*787defendant has also moved for and was granted a protective order staying discovery on August 6, 1985.

DISCUSSION

Defendant has raised two dispositive jurisdictional issues in its motion for summary judgment. These are: (1) Whether plaintiff is barred from obtaining relief in this court pursuant to the “no review” provision of 38 U.S.C. § 211(a) (1982), see supra note 3; and (2) whether plaintiffs over thirty-six year old claim is simultaneously barred from consideration by this court by the six-year statute of limitations contained in 28 U.S.C. § 2501 (1982), see supra note 2. Since we find these two claims equally persuasive, we grant defendant’s motion, as previously stated, and, therefore, do not reach the merits of plaintiff’s motion. Plaintiff’s cross-motion is, consequently, denied.

A. The “No Review” Statute

The long and questionable history of the VA “no review” statute is well documented by the courts and the commentators.4 See Cunningham v. United States, 549 F.2d 753, 212 Ct.Cl. 451 (1977); Johnson v. Robison, 415 U.S. 361, at 372, 94 S.Ct. 1160, at 1168, 39 L.Ed.2d 389 (1974); Wickline v. Brooks, 446 F.2d 1391 (4th Cir.1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 749, 30 L.Ed.2d750; Napier v. Veterans Administration, 187 F.Supp. 723 (D.N.J.1960), aff'd, 298 F.2d 445 (3d Cir.1962), cert. denied, 371 U.S. 186, 83 S.Ct. 266, 9 L.Ed.2d 228. See also F. Davis, Veterans Benefits, Judicial Review, and the Constitutional Problems of “Positive” Government, 39 Ind.L.J. 183 (1964). Except for those challenges based on the constitutionality of the veterans’ benefit legislation, Johnson, 415 U.S. at 366-74, 94 S.Ct. at 1165-69, or regulations promulgated under that legislation, University of Maryland v. Cleland, 621 F.2d 98 (4th Cir.1980); Wayne State University v.

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Bluebook (online)
8 Cl. Ct. 784, 1985 U.S. Claims LEXIS 906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slotnick-v-united-states-cc-1985.