Memorandum and Order

WILLIAM YOHN, JR., District Judge

Pro se plaintiff Donald Francis MacKay, Jr., brings this civil action against defendant United States Veterans Administration to obtain disability benefits from the VA relating to his service in the United States Army from 1972 to 1974. Plaintiff alleges that he has skin cancer that was caused by his exposure to Agent Orange while serving in Korea. In his caption and complaint, plaintiff indicates that he also seeks relief for "all others similarly situated."

Presently before the court is defendant's motion to dismiss this complaint, and to grant summary judgment on plaintiff's class action claim. Defendant asks the court to dismiss plaintiff's complaint with prejudice under Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction because under the Veterans Judicial Review Act of 1988 ("VJRA"), Pub.L. No. 100-687, Tit. III, 102 Stat. 4105, 4113-4122 (codified in various sections of Title 38 of the United States Code), the United States Court of Appeals for Veterans Claims has exclusive jurisdiction over appeals of VA benefit decisions.

Alternatively, if I find that this court has jurisdiction over plaintiff's claim, defendant asks the court to dismiss plaintiff's complaint with prejudice under Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted because plaintiff has not exhausted his administrative remedies with the VA in seeking service-related disability benefits.

Defendant also asks for summary judgment because the Court of Appeals for Veterans Claims (CAVC) must decide each claim for benefits individually, not as a class.

Plaintiff filed with this court a "motion for judgment" (Doc. # 9), which this court will interpret as a response to defendant's motion.

STATEMENT OF FACTS

Plaintiff was stationed in South Korea. He served honorably in the United States Army from August 14, 1972 to February 12, 1974. From July 13, 1973, plaintiff was assigned to a missile unit in Korea until on or before his discharge. Rating decision at 2 (attached to plaintiff's "Amended Caption"); Declaration of Mike Blazis ¶ 4 ("Blazis Decl.").

Plaintiff alleges that he was exposed to Agent Orange and that as a result of that exposure, he now has melanoma and diabetes. He filed a claim for benefits with the Department of Veteran Affairs on May 27, 2003. Rating decision at 2; Blazis Decl. ¶ 5, Exh. A. The Department of Veteran Affairs denied his claim on September 12, 2003. The VA Regional Office issued a rating decision, see Def.'s Exh. B, explaining that the VA denied plaintiff's claim for service-connected disability benefits because Department of Defense information showed that Agent Orange was used at the Demilitarized Zone ("DMZ") in Korea from April 1968 until July 1969, which preceded plaintiff's arrival in Korea by four years. Rating decision at 2; Blazis Decl. ¶ 6. Plaintiff was also not assigned to any areas where Agent Orange had been deployed. Rating decision at 2; Blazis Decl. ¶¶ 6-7; Rating Decision at 2. The rating decision also explained that there was "no medical evidence showing that skin cancer manifested to a compensable degree (10% or more) within one year following discharge from military service. Rating decision at 2. Plaintiff argues that this reasoning is "ludicrous," given that signs of cancer "did not appear on veterans from Vietnam until twenty years after discharge." Compl. at 1. Plaintiff asks this court that he, and all others similarly situated, be given a "100% service rating," and disability retroactive to the time of discharge. Compl. at 2.

The denial of his request for benefits was explained to plaintiff in a letter dated September 19, 2003. Blazis Decl. ¶ 8, Exh. C. Plaintiff was provided with a copy of the rating decision and VA Form 4107VHA (Your Rights to Appeal Our Decision). Blazis Decl. ¶ 8, Exh. D. Copies of the letter, rating decision, and VA Form 4107 were also provided to plaintiff's representative, the American Legion. Blazis Decl. ¶ 8.

To appeal the decision, veterans who are dissatisfied with their rating decisions must file a notice of disagreement with the Regional Office within one year. Blazis Decl. ¶ 9. As of February 27, 2004, plaintiff had not filed a notice of disagreement with the Regional Office. Blazis Decl. ¶ 10. Furthermore, plaintiff as of January 29, 2004 had not filed an appeal with the Board of Veterans' Appeals ("BVA"). Declaration of Kerry Loring, BVA Chief Counsel for Operations ("Loring Decl.") ¶ 3.

I. SUBJECT MATTER JURISDICTION

Defendant asks the court to dismiss plaintiff's complaint with prejudice under Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction because under the Veterans Judicial Review Act of 1988 ("VJRA"), the United States Court of Appeals for Veterans Claims has exclusive jurisdiction over appeals of VA benefit decisions.

STANDARD OF REVIEW

When the defendant challenges subject matter jurisdiction under Rule 12(b)(1), the plaintiff bears the burden of persuasion. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). However, plaintiff's burden is light. Dugan v. Coastal Industries, Inc., 96 F. Supp.2d 481, 482-83 (E.D. Pa. 2000). "A district court can grant a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction based on the legal insufficiency of a claim. But dismissal is proper only when the claim `clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and frivolous.'" Kehr Packages, 926 F.2d at 1408-1409 ( quoting Bell v. Hood, 327 U.S. 678, 682 (1946)). Where the defendant's motion is not merely a facial challenge to the district court's jurisdiction, the court is not limited to the face of the pleadings in determining whether it has subject matter jurisdiction; it "may review any evidence to resolve factual disputes concerning the existence of jurisdiction." Gotha v. U.S., 115 F.3d 176, 179 (3d Cir. 1997).

DISCUSSION

Under the doctrine of sovereign immunity, the United States cannot be sued without its consent. Lane v. Pena, 518 U.S. 187, 192 (1996); Richards v. United States, 176 F.3d 652, 654 (3d Cir. 1999).

Under the Veterans Judicial Review Act of 1988 ("VJRA"), the United States waived sovereign immunity with respect to review of VA decisions or procedures only for matters properly brought to the United States Court of Appeals for the Federal Circuit and the United States Supreme Court. Price v. United States, 228 F.3d 420, 421 (D.C. Cir. 2000); Duke v. United States, 305 F. Supp. 2d 478, 489 (E.D. Pa. 2004).

The appeal process described in the VJRA makes clear that this court does not have subject matter jurisdiction over plaintiff's appeal.

Veterans are required to file their benefits claims with a regional office of the Department of Veterans Affairs, which then renders a decision. 38 U.S.C. § 5101(a). Claimants may appeal decisions of the regional office by filing a notice of disagreement with the Board of Veterans' Appeals ("BVA"). 38 U.S.C. § 7105. The BVA can then either issue a final decision or remand the claim to the regional office for further development and subsequent appeal. 38 U.S.C. § 7104. If the claimant is dissatisfied with the decision of the BVA, he or she may appeal to the United States Court of Appeals for Veterans Claims ("CAVC") 38 U.S.C. § 7252(a). The CAVC has exclusive jurisdiction over appeals from the BVA. 38 U.S.C. §§ 7252(a), 7266(a). If the claimant continues to be dissatisfied with the outcome of the appeal, the claimant may further appeal to the United States Court of Appeals for the Federal Circuit and thereafter to the United States Supreme Court. 38 U.S.C. §§ 7291, 7292.

This court lacks subject matter jurisdiction over appeals of VA benefit decisions because the VJRA specifically provides that the CAVC, not this court, has exclusive jurisdiction of appeals of VA determinations of benefit claims. Accordingly, I will dismiss the plaintiff's complaint for lack of subject matter jurisdiction.

II. EXHAUSTION OF REMEDIES

Even if this court has jurisdiction over plaintiff's claims, I will dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6) because the plaintiff has failed to exhaust his administrative remedies.

STANDARD OF REVIEW

In ruling on a 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, the court must accept as true all well-pleaded allegations of fact, and any reasonable inferences that may be drawn therefrom, in the plaintiff's complaint and must determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citations omitted); Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988), cert. denied, 489 U.S. 1065 (1989) (citations omitted). To resolve a 12(b)(6) motion, this court may properly consider public records in addition to the allegations in the complaint. Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group, Ltd., 181 F.3d 410, 426 (3d Cir. 1999). Although the court must construe the complaint in the light most favorable to the plaintiff and must draw all reasonable inferences in the plaintiff's favor, it need not accept as true legal conclusions or unwarranted factual inferences. Ford v. Schering-Plough Corp., 145 F.3d 601, 604 (3d Cir. 1998). See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Claims should be dismissed under Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. at 45-46.

DISCUSSION

I find that the plaintiff has failed to state a claim for which relief may be granted because he did not exhaust his administrative remedies.

A party may not seek judicial review of an adverse administrative action until he or she has exhausted all available administrative remedies. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938). A claimant for veterans' benefits must exhaust administrative remedies by obtaining a final decision from the Board of Veterans' Appeals ("BVA") before the claim is ripe for review in any court. Davis v. United States, 36 Fed. Cl. 556, 560 (U.S. Claims 1996); Van Doren v. Dept. Veterans Affairs, Civ. No. 96-4112, 1996 U.S. Dist. LEXIS 19702 at *7 (Dec. 31, 1996). To do so, claimant must file a notice of disagreement with the BVA. 38 U.S.C. § 7105.

MacKay was specifically advised that if he disagreed with the agency's September 12, 2003 rating decision denying his claim for benefits, he should file a notice of disagreement with the agency within one year. Blazis Decl. ¶ 10; Loring Decl. ¶ 3. Plaintiff has not alleged that he has done so. According to the defendant, however, plaintiff failed to do so. MacKay does not dispute defendant's assertion that he failed to file a notice of disagreement with the BVA through allegations in his complaint or in his response to the motion. Thus, under the principles of administrative exhaustion, I will dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6).

CONCLUSION

This court does not have subject matter jurisdiction over the plaintiff's claims because the United States Court of Appeals for Veterans Claims (CAVC) has exclusive jurisdiction over appeals of VA benefit decisions and the plaintiff has not raised a facial constitutional challenge to the veterans' benefits legislation. Thus, I will grant defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). Plaintiff has also failed to state a claim for which relief can be granted because plaintiff has failed to exhaust his administrative remedies under the VJRA. Thus, I will also grant the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). An appropriate order follows.

Order