DANIEL B. VANWART, Plaintiff
UNITED STATES OF AMERICA, Defendant
Plaintiff DANIEL B VANWART represented by DANIEL B VANWART PRO SE
Defendant UNITED STATES OF AMERICA represented by ANDREW K. LIZOTTE U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE, EVAN J. ROTH U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE ATTORNEY TO BE NOTICED
John C. Nivison U.S. Magistrate Judge
In this action, Plaintiff Daniel B. Vanwart alleges that the United States Department of Veterans Affairs (the VA) misdiagnosed his condition as borderline personality disorder, instead of the correct diagnosis of depression and anxiety. Plaintiff also asserts that the VA improperly administered his requests for review and modification of the finding of the psychiatric examination, relied on the flawed report of the examination to deny his claim for service-connected disability benefits, and concealed or suppressed the psychiatric examination report to prevent Plaintiff from discovering that it contained a flawed diagnosis. Plaintiff contends that because of the VA’s conduct, he lost disability benefits, left his employment with the VA due to untreated depression, unnecessarily suffered years of untreated depression and anxiety, and developed a cognitive disorder due to lack of treatment.
The matter is before the Court on Defendant’s Motion to Dismiss (ECF No. 13). Following a review of the pleadings, and after consideration of the parties’ arguments, as explained below, the recommendation is that the Court grant the motion.
The facts set forth herein are derived from Plaintiff’s Complaint, which facts are deemed true when evaluating the Motion to Dismiss. Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998). In addition, the Court can also consider documents the authenticity of which are not disputed by the parties, public records, documents central to Plaintiff’s claim, and documents sufficiently referred to in the complaint. Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).
In 2003, Plaintiff, alleging that he was suffering from depression, filed a claim with the VA for service-connected disability benefits. At the time, Plaintiff was employed at the VA’s Togus facility in Augusta, Maine. According to Plaintiff, because Plaintiff was employed at the Togus facility, his claim-related psychiatric evaluation should have been conducted through the VA’s Boston office. Instead, the psychiatric examination was referred to QTC Medical Services Inc., a private provider under contract with the VA. Based on the referral, Carl Metzger, M.D., an individual QTC contract provider, evaluated Plaintiff. (Complaint at 2-3.) Plaintiff claims the referral was improper.
Plaintiff asserts that when Dr. Metzger conducted Plaintiff’s psychiatric examination in November 2003, the Board of Licensure in Medicine had just conducted a hearing to determine whether to discipline Dr. Metzger for certain alleged violations of the standards of practice and, approximately a year later, denied Dr. Metzger’s application for license renewal. Plaintiff maintains that he was unaware of these circumstances at the time of his evaluation. (Id. at 2, 5.)
Following his evaluation of Plaintiff, Dr. Metzger reported that Plaintiff suffered from borderline personality disorder and not depression. Because the diagnosis was considered a “developmental disorder, ” by rule, the condition was determined to be non-service-related. Plaintiff’s claim for service-connected disability benefits, therefore, was denied on initial review in February 2004 and on appeal before a Veterans Law Judge (VLJ) in May 2006. (Id. at 3-4.)
Between the initial 2004 administrative decision and the 2006 administrative appellate decision on Plaintiff’s claim for disability benefits, Plaintiff filed a Notice of Disagreement and a request for an amendment of his medical record, in which filings he challenged Dr. Metzger’s findings. He also quit his job with the VA due to severe depression. Plaintiff asserts that the Rating Veterans Service Representatives who considered Plaintiff’s Notice of Disagreement failed to forward his request for amendment of his medical record to a VA Privacy Officer. According to Plaintiff, the representatives also asserted that although they had authority to return the psychiatric examination report to QTC Medical for substantiation of the diagnosis if the diagnosis did not conform to the DSM-IV, they found that “[t]here is no indication that the VA examination failed to conform to the provisions outlined in the DSM-IV based on the findings from this examination report.” (Id. at 4.)
In January 2013, in connection with his VA treatment for new symptoms, Plaintiff conducted some online research regarding the relationship between his symptoms and depression. He also conducted online research about Dr. Metzger and discovered that Dr. Metzger’s application for license renewal was under review when Dr. Metzger evaluated Plaintiff. Plaintiff alleges that at that point, he knew for the first time that Dr. Metzger was incompetent and that the borderline personality disorder diagnosis was erroneous. He further contends that had the VLJ remanded his disability claim for further evaluation, “Carl Metzger would not have been available to correct the exam and his incompetence would have been revealed.” (Id. at 5.) Plaintiff also alleges that had his request for amendment of his medical records been forwarded to the Privacy Officer for review, “the truth of the exam inadequateness/incorrectness may have been evident much sooner.” (Id.)
On February 15, 2013, Plaintiff filed an administrative claim against the VA under the Federal Tort Claims Act, and exhausted the associated administrative claims process. The VA denied Plaintiff’s claim after concluding that the facts and circumstances do not establish negligence on the part of the VA or its employees. (Id. at 6.)
In February 2014, Plaintiff obtained a neuropsychological evaluation from a clinical neuropsychologist. As part of the evaluation, the neuropsychologist reviewed Dr. Metzger’s report. According to the neuropsychologist, three of the four features cited by Dr. Metzger to substantiate the borderline personality disorder diagnosis are, in fact, not supportive of such a diagnosis. The ...