Chagnon v. Concepcion et al

Filing 6

ORDER to assist the court in its preliminary review and considering the motion for preliminary injunction, the defendants, within 30 days, to file a brief 3 Motion for Preliminary Injunction, 1 Complaint. So Ordered by Magistrate Judge Landya B. McCafferty.(mm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

John F. Chagnon
v.

Civil No. 11-cv-474-PB

Abner Concepcion et al.

O R D E R
Pro se plaintiff, John Chagnon, has filed a complaint (doc.
no. 1) and an addendum (doc. no. 4), asserting that defendant
Abner Concepcion, Manager of the Boston Veterans Affairs
Regional Office (“VARO”), has treated Chagnon negligently and
abusively, in connection with the Boston VARO’s processing and
denial of Chagnon’s veterans benefits claim for Post-Traumatic
Stress Disorder (“PTSD”), and in causing Chagnon’s supplemental
security income (“SSI”) disability payments to be reduced in
2010 and 2011.

Chagnon has also named Eric Shinseki, United

States Department of Veterans Affairs (“VA”) Secretary, as a
defendant.

Because Chagnon is proceeding pro se and in forma

pauperis, the matter is before the court for preliminary review.
See 28 U.S.C. § 1915(e); United States District Court for the
District of New Hampshire Local Rule (“LR”) 4.3(d)(1)(B).
Also pending is Chagnon’s motion for a preliminary
injunction (doc. no. 3), requesting an order that would, among

other things: (1) remove the Boston VARO from further
involvement in Chagnon’s PTSD claim; (2) expedite the processing
of that claim; and (3) direct that Chagnon’s VA treating
psychiatrist, Dr. Michael Imura, provide the necessary pertinent
medical opinion regarding the claim.

The district judge has

referred that motion to the magistrate judge for proposed
findings of fact and rulings of law, and a recommendation
regarding the motion’s disposition.

See Order (doc. no. 5).

The factual allegations in the motion for a preliminary
injunction supplement and clarify certain matters asserted in
the original complaint.

Thus, the complaint in this case is

construed to consist of the original complaint, the addendum,
and the pertinent contents of the motion for a preliminary
injunction (doc. nos. 1, 3, and 4).
Background
Chagnon is a Vietnam-era veteran.

During his military

service, Chagnon served as a counselor to Marines returning to
the United States in 1962 and 1963.

Chagnon asserts that he

suffered a service-related disability, PTSD, at that time.
Nineteen years ago, Chagnon submitted a claim for benefits
related to his allegedly disabling PTSD.

The complaint

indicates that within the last ten years, Chagnon has applied at

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least twice for VA mental health disability benefits, and that
VAROs in Florida and Boston have both denied him those benefits.
Chagnon appealed the Boston VARO’s denial of his claim to
the Board of Veterans’ Appeals (“BVA”), and the BVA remanded the
matter in August 2010, directing the VARO on remand to obtain a
medical opinion regarding Chagnon’s PTSD and its service
connection, and further directing that the matter be processed
expeditiously.

In response to that August 2010 remand,

Concepcion arranged for Chagnon to be examined by Dr. Harland, a
VA physician, in December 2010.

Chagnon asserts that Dr.

Harland’s examination was unprofessional, and that her report
was deficient in a number of respects.

Concepcion submitted Dr.

Harland’s report to the BVA along with other records relating to
Chagnon’s claim on July 17, 2011, approximately eleven months
after the August 2010 remand.
On September 12, 2011, upon finding that Dr. Harland’s
report lacked a pertinent medical opinion on whether Chagnon’s
psychosis was service-connected, the BVA remanded the matter to
the VARO for a second time.

The BVA directed the VARO to obtain

a new medical opinion relating to Chagnon’s claim.
Chagnon’s claim remains pending before the VARO at this
time, following the September 2011 BVA remand.

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Chagnon, who is

currently under the care of VA psychiatrist Dr. Michael Imuri
for his PTSD, would prefer that Imuri and not Dr. Harland be
retained by the VA to provide a medical opinion on his claim.
Chagnon is disabled and dependent on monthly SSI payments to pay
all of his expenses, and he claims to be suffering extreme
financial hardship while awaiting a new decision on his claim
for PTSD benefits.
Chagnon claims that Concepcion has been improperly
supervised and that, within the last three years, Concepcion and
other VA officials have: (a) failed to respond to Chagnon’s
inquiries; (b) appointed an “unprofessional” VA doctor to deny
Chagnon’s PTSD claim; (c) failed to publish and follow pertinent
VA rules; (d) failed to provide Chagnon an opportunity to
confirm that all claim files are before the BVA; and (e) failed
to process Chagnon’s claim expeditiously.

Chagnon also

specifically asserts that between September 2010 and May 2011,
Concepcion put in place a plan to withdraw a portion of
Chagnon’s SSI benefits, which caused Chagnon’s monthly SSI
payment to drop from $902 per month to $766 per month from
January through May 2011.

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Discussion
Construed liberally, Chagnon’s complaint asserts, among
other things, that the VA Secretary and the Boston VARO have
unreasonably delayed processing Chagnon’s claim for PTSD
benefits, in violation of his right to due process under the
Fifth Amendment.

The Ninth Circuit, in Veterans for Common

Sense v. Shinseki, 644 F.3d 845, 881 (9th Cir. 2011), held that
38 U.S.C. § 511(a) did not bar veterans’ organizations, on
behalf of their members, from asserting a due process claim
challenging systemic delays in the processing of benefits
claims.

That Ninth Circuit decision is at odds with a Sixth

Circuit decision, Beamon v. Brown, 125 F.3d 965, 970-71 (6th
Cir. 1997), in which the Sixth Circuit concluded that Congress
vested exclusive jurisdiction to address such claims in the
Court of Appeals for Veterans Claims.

Neither the Supreme

Court, nor the First Circuit has issued any decision on § 511(a)
relating to that issue.
Conclusion
To assist the court in completing its preliminary review of
the complaint and in considering Chagnon’s motion for a
preliminary injunction (doc. no. 3), the court hereby orders
defendants, within thirty days of the date of this Order, to

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file a brief, limited to fifteen pages, exclusive of any
attached exhibits, addressing the following issues:
1.
Whether this court has jurisdiction to consider
plaintiff’s claim that the VA Secretary has unreasonably
delayed its processing of his claim for veteran’s benefits,
in violation of Chagnon’s right to due process; and
2.
The procedural history and current status of
Chagnon’s PTSD claim, claim number 22875270, including:


the timing and location of any medical examination
that may be planned for plaintiff, to obtain a
medical opinion as directed by the Board of Veterans’
Appeals in its order remanding the matter, dated
September 12, 2011, and



the anticipated date of the Boston VARO’s disposition
of Chagnon’s claim.

Once defendants’ brief is filed, Chagnon will have thirty days
to file a responsive brief.

Upon the parties’ compliance with

this order, the court shall complete its preliminary review and
take further action on the pending motion (doc. no. 3).
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
November 16, 2011
cc:

John F. Chagnon, pro se

LBM:nmd

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