Zayas v. Veterans Admin., Civ. No. 85-1121 (JAF).

• Decision Date: 14 August 1987
• Docket Number: Civ. No. 85-1121 (JAF).
• Citation: 666 F. Supp. 361
• Parties: Carlos R. ZAYAS, Petra Escudero De Zayas, the Conjugal Partnership Composed by them, Jose Zayas Escudero, Mayra Zayas Escudero, Kelly Zayas Escudero, Juan Carlos Zayas Escudero, and Petrie Zayas Escudero, Plaintiffs, v. VETERANS ADMINISTRATION, Myrna M. Pagan and John Doe, and their conjugal partnership, Barbara P. Gerber and John Doe 2, and their conjugal partnership, P.M. Fletcher and John Doe 3, and their conjugal partnership, Martiza R. Anaya and John Doe 4, and their conjugal partnership, M. Gonzalez and Jane Doe, and their conjugal partnership, Charles Freeman and Jane Doe 2, and their conjugal partnership, Herbert B. Mars and Jane Doe 3, and their conjugal partnership, Jose G. Lopez and Jane Doe 4, and their conjugal partnership, John Roe, Jane Roe, Defendants.
• Court: U.S. District Court — District of Puerto Rico

666 F. Supp. 361

Carlos R. ZAYAS, Petra Escudero De Zayas, the Conjugal Partnership Composed by them, Jose Zayas Escudero, Mayra Zayas Escudero, Kelly Zayas Escudero, Juan Carlos Zayas Escudero, and Petrie Zayas Escudero, Plaintiffs, v. VETERANS ADMINISTRATION, Myrna M. Pagan and John Doe, and their conjugal partnership, Barbara P. Gerber and John Doe 2, and their conjugal partnership, P.M. Fletcher and John Doe 3, and their conjugal partnership, Martiza R. Anaya and John Doe 4, and their conjugal partnership, M. Gonzalez and Jane Doe, and their conjugal partnership, Charles Freeman and Jane Doe 2, and their conjugal partnership, Herbert B. Mars and Jane Doe 3, and their conjugal partnership, Jose G. Lopez and Jane Doe 4, and their conjugal partnership, John Roe, Jane Roe, Defendants.

Civ. No. 85-1121 (JAF).

United States District Court, D. Puerto Rico.

August 14, 1987.

John M. García, San Juan, P.R., for plaintiffs.

Francisco A. Besosa, Asst. U.S. Atty., and Daniel F. López Romo, U.S. Atty., San Juan, P.R., for defendants.

OPINION AND ORDER

FUSTE, District Judge.

Carlos R. Zayas, an honorably-discharged veteran of the United States Army, filed this action, along with his wife and children, against several officers of the Veterans Administration in their personal capacity, for alleged violation of his constitutional rights.¹ Jurisdiction is pleaded under 28 U.S.C. sec. 1331 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The case stands submitted on cross-motions for summary judgment. There is no genuine issue as to material facts, making Fed.R.Civ.P. 56 the proper procedural vehicle for the disposition of this controversy. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The parties entered into a judicially-approved stipulation of facts which is contained in a court's order dated November 1, 1985, docket document No. 16. Veteran Zayas was discharged from the United States Army in May 1960, by reason of a psychiatric disability. He had entered the service on September 10, 1950 and advanced rapidly to SFC in less than three years. See Clinical Record, Narrative Summary, issued by the Medical Hold Det. Fitzimons on March 10, 1960, docket document No. 21, Exhibit No. 14. On July 28, 1960, he was rated by the Veterans Administration (VA) as having a 30% disability for a service-connected condition. Zayas was then described as totally and permanently incapacitated for further military service and medically unfit for retention on active duty because of his paranoid condition.

After his discharge from service, he was awarded veteran's disability compensation. On October 29, 1969, the VA increased Mr. Zayas' disability rating to 100%, retroactive to February 5, 1956, with a final diagnosis of non-differentiated schizophrenic reaction-paranoid type. Zayas was held incompetent to handle funds. See docket document No. 21, Exh. B. His wife, Petra Escudero, received the payments in a fiduciary capacity.

At the beginning of the year 1983, the Veterans Administration cited veteran Zayas for a medical/psychiatric examination. There seems to be no specific motivating reason for such request, inasmuch as no reasons were advanced to Zayas and his wife Petra Escudero for said request. Documents on file show that Mrs. Escudero had little or no control over her husband's acts. Zayas reacted adversely to the proposed exam.² In fact, he failed to report to the examinations set for May 20, 1983 and June 27, 1983.

On July 18, 1983, the VA wrote to Mrs. Escudero cautioning that Mr. Zayas' failure to report for examination would result in discontinuance or reduction of benefits. A third medical examination was scheduled for September 22, 1983. Obviously, for the reasons already mentioned, Mr. Zayas failed to appear. On November 11, 1983, Mildred González, a veteran's claim examiner at the VA Regional Office in San Juan, Puerto Rico, issued a rating decision suspending Mr. Zayas' benefits for failure to report to the exam. This action was taken under the provisions of 38 C.F.R. sec. 655 (1975). Three months later, on January 31, 1984, a VA Rating Board composed by a Ms. González, Barbara P. Gerber, and Myrna M. Pagán, M.D., modified Ms. González' previous suspension and established Mr. Zayas' disability at 30%, retroactive to November 1, 1983.³ Although not clear, there is some evidence that a third party contacted the Veterans Administration to inform of the fact that Zayas' failure to comply with appointments was caused by his mental disease. As a result thereof, in April 1984 he was examined by a VA doctor at the offices of Zayas' private psychiatrist. Based on this examination, a VA Rating Board, this time composed by Dr. Pagán, Ms. Gerber, and Pauline Fletcher, issued a decision confirming Mr. Zayas' 30% disability rating. Both rating actions were taken at the VA's San Juan Regional Office by their personnel.

It is undisputed that Zayas' predicament came about and materialized as a result of a Congressional investigation that focused over the fact that veterans residing in Puerto Rico enjoying 100% neuropsychiatric disability more than doubled the percentage of the same veteran population stateside. These statistics created Congressional concern about the administration of VA programs in Puerto Rico. See Report of Special Audit, Veterans Administration Medical and Regional Office Center, S.J. Office of Inspector General, Rept. No. 3R2-A05-043, Feb. 22, 1983, docket document No. 21, Exh. 12. See also Com. of Puerto Rico by Hernández Colón v. Walters, 660 F.Supp. 1230 (D.P.R.1987). It calls our attention that on September 11, 1986, the VA's rating board, sua sponte, revised plaintiff's disability, increasing the percentage to 70%. There, it is stated that Zayas failed to attend an additional appointment for psychiatric examination, so they (VA) recurred to a social and industrial field survey.⁴ As a result of the social worker's visit to Zayas' home, they were able to confirm that Zayas indeed is sick and paranoid:

when the social worker first visited veteran's home, she precipitated a crisis and the veteran blamed his wife for the presence of the social worker and accused her of doing things against his best interests. A few days after veteran became violent, threw her out of the house and the couple ended up separating and filing for divorce.

Rating decision, Sept. 11, 1986, p. 2, docket document No. 43.

I.

We first decide whether this suit is permissible under 38 U.S.C. sec. 211(a). Section 211(a) reads:

The decisions of the Administrator or any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.

This provision has been interpreted as referring strictly to administrative procedures where the VA is applying the law. An exception has been recognized to allow suits involving constitutional challenges to practices of the VA. See Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); Johnson v. United States, 749 F.2d 1530, 1533 (11th Cir.1985); Anderson v. Veterans Administration, 559 F.2d 935, 936 (5th Cir.1977). The circuits are divided between liberal and restrictive reading of Johnson v. Robison. The First Circuit has not adopted a position on this issue. However, it has indicated that they are inclined to follow the Second Circuit and the Federal Circuit. See Paluca v. Secretary of Labor, 813 F.2d 524 (1st Cir.1987), citing with approval Roberts v. Walters, 792 F.2d 1109 (Fed.Cir.1986); Traynor v. Walters, 791 F.2d 226 (2d Cir.1986). These cases have expressed that the "clear and convincing evidence" of Congressional intent in enacting section 211(a) was to completely bar judicial review of veterans' benefit claims. Traynor, 791 F.2d at 229. The Johnson v. Robison holding, recognizing the right to sue under certain circumstances, is not an exception to the rule, but rather a uniform interpretation of the same in the sense that it allows for a constitutional review of the veterans' benefit regulations and not of its procedural application. See Davis v. Veterans Administration, 792 F.2d 1111 (Fed.Cir.1986).

Therefore, our review in this case is limited to whether VA's regulation, 38 C.F.R. 3.655, is constitutional and whether the defendants correctly applied the same.⁵ Recently, it has been established that allegations of procedural due process violations in reducing pension benefits state a claim of unconstitutional deprivation of a property interest actionable under the United States Constitution. See Tyson Mathes v. Hornbarger, 821 F.2d 439 (7th Cir.1987); Winslow v. Walters, 815 F.2d 1114 (7th Cir.1987).

In the instant case, we are confronted with a constructive denial of a hearing prior to having a property right taken away, as in Winslow. The issue here is whether the VA, it being obvious from the records it had before them that plaintiff Carlos Zayas was mentally disabled, could call him in for a hearing or examination and automatically reduce the benefits if the mentally-sick veteran failed to comply. The file extensively reflects on the fact that the VA had available other mechanisms to reevaluate a 100% mentally-disabled veteran. As a matter of fact, they did reevaluate him through other means in 1986 as already stated.

A lawsuit making a procedural claim does not challenge "the interpretation or application of a particular provision to a particular set of facts." Johnson v. Robison, 415 U.S. at 367, 94 S.Ct. at 1166. A suit challenging the constitutionality of the VA's procedures⁶ presents a question of law that arises under the Constitution. Winslow, 815 F.2d at 1117.

II.

Applying the above-quoted principles to this case, we see that in November 1983,...