Smalls v. United States

87 Fed. Cl. 300, 2009 U.S. Claims LEXIS 200, 2009 WL 1635131
United States Court of Federal Claims·Decided June 5, 2009·No. No. 08-250C·Published·Cited by 25 cases

Opinion

OPINION AND ORDER

GEORGE W. MILLER, Judge.

Plaintiff, who is appearing pro se, filed a complaint in this court seeking injunctive relief and monetary damages relating to his application to reopen a claim for reimbursement of the cost of certain medical treatment that had been denied by the Department of Veterans Affairs (“VA”) Regional Office in Honolulu, Hawaii (“RO”). The Government filed a motion to dismiss plaintiffs complaint asserting that the United States Court of Federal Claims does not have jurisdiction over plaintiffs complaint. Plaintiff filed a cross-motion for summary judgment and requested, in the alternative, that his action be transferred to a court with jurisdiction. For the reasons set forth below, the Court grants the Government’s motion to dismiss and denies plaintiffs cross-motion for summary judgment. The Court has also concluded that this ease does not meet the criteria for transfer pursuant to 28 U.S.C. § 1631. Accordingly the Court declines to transfer this case to a district court or other court pursuant to 28 U.S.C. § 1631.

BACKGROUND

The following facts, taken from plaintiffs filings and their attachments, are, in the absence of challenge by defendant, presumed true for the purpose of deciding defendant’s motion to dismiss for lack of subject matter jurisdiction. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747-48 (Fed.Cir.1988) (stating that decisions on motions to dismiss normally “consider the facts alleged in the complaint to be true and correct,” but when the defendant “challenges the truth of the jurisdictional facts alleged in the complaint,” the plaintiff “bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence”).

Plaintiff served in the United States Marine Corps from July 1978 to December 1980, when he was honorably discharged for medical reasons. Complaint ¶ 18 (docket entry 1, April 8, 2008). In September 1993, plaintiff submitted a claim to the RO for reimbursement of $13,242.92 expended for private medical treatment rendered from August 1992 to September 1993 (“Original Claim”). Id. ¶¶ 7, 22. The private treatment was provided by Dr. Michael Lee for bilateral plantar fasciitis; Dr. V.G. Clark-Wismer for arthritis, pain and associated psychological stress; and Dr. Jarret Ko for back and foot injuries. Id. ¶¶ 22, 29-31. Each of these physicians was in private practice and not associated with the VA. Smalls v. West, 16 Vet.App. 41, 1998 WL 190357, at *1 (1998).

On October 21, 1993, the RO denied plaintiffs claim for reimbursement of non-VA medical expenses. Complaint ¶ 23; Ex. 13 to Plaintiffs Supplemental Brief (docket entry [302]*30213, Jan. 16, 2009) (“Pl.’s Supp. Br.”). In May 1994, plaintiff filed an appeal with the Board of Veterans Appeals (“BVA”). The Board upheld the RO’s decision on February 25, 1997, finding that plaintiff “did not receive authorization from the VA for the outpatient treatment” and that the treatment “was not rendered under emergent conditions.” Smalls, 1998 WL 190357, at *1; Complaint ¶ 25. Shortly after the BVA’s decision, in March and April of 1997, plaintiff acquired what he characterizes as new evidence in the form of letters from the three treating physicians (“Doctors’ Explanatory Letters”) stating that their services were “critical” or of an “emergent nature.” Exs. 9-11 to Plaintiff’s Response to Defendant’s Motion to Dismiss and Cross-Motion for Summary Judgment (docket entry 7, July 16, 2008) (“Pl.’s Resp.”). Plaintiff also submitted affidavits to the RO from Dr. Lee and Dr. Ko explaining their treatment of plaintiff. Complaint ¶¶ 58-60; Exs. 15,16 to Pl.’s Resp.

Plaintiff appealed the BVA’s decision to the United States Court of Veterans Appeals (“Veterans Court”).1 It is unclear from the record whether the Doctors’ Explanatory Letters, which were obtained by plaintiff after the BVA decision, were presented to the Veterans Court, and if so whether the Veterans Court reviewed and/or considered the documents.2 On March 24, 1998, the Veterans Court granted the motion of the Secretary of Veterans Affairs for summary affir-mance, stating that “while it does appear that some of the private treatment for which the appellant seeks reimbursement was for his sendee-connected conditions, there is no evidence in the record that any of the treatment was ‘rendered in a medical emergency of such nature that delay would have been hazardous to |hisj life or health’” and “the appellant specifically stated in his original claim for reimbursement that ‘no emergency existed].’” Smalls, 1998 WL 190357 at *2.

Following the Veterans Court’s decision, plaintiff appears to have spent the next ten years attempting to use the Doctors’ Explanatory Letters to reopen his claim. Correspondence submitted by plaintiff suggests that when he first applied for reimbursement, he did not understand the definition of “emergency” as used in reference to the criteria for granting reimbursement claims. See 38 U.S.C. § 1728(a) (2006), subsequently amended by Pub.L. 110-387, § 402(b)(1), 122 Stat. 4110, 4123 (2008) (stating that veterans may be reimbursed for non-VA medical expenses when “such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health”). Plaintiff stated he originally believed that his treatment was not in response to an emergency because it was not in response to an acute life-threatening situation. Ex. 13 to Pl.’s Resp. To demonstrate that his treatment was in fact rendered in response to his new understanding of a medical emergency, which plaintiff alleged included “action to prevent a condition from worsening to a state where irreparable harm may be the result,” plaintiff submitted to the RO the Doctors’ Explanatory Letters along with a request that the RO reopen his claim. Ex. 13 to Pl.’s Resp.; Complaint ¶¶ 28, 34.

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Smalls v. United States, 87 Fed. Cl. 300, 2009 U.S. Claims LEXIS 200, 2009 WL 1635131 (uscfc 2009).

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