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May 10, 2011
SAN FRANCISCO, Calif. – The political branches of the federal government, including the Department of Veterans Affairs (VA), “have so completely and chronically failed to respect [veterans’] constitutional rights that the courts must be willing to enforce them,” according to an opinion filed today by the Ninth Circuit Court of Appeals in San Francisco. In reversing a judgment by the district court, which declined to intervene in the VA’s dysfunctional operations because that court believed it lacked the power to do so, the appellate court stated: “Because the VA continues to deny veterans what they have been promised without affording them the process due to them under the Constitution, our duty is to compel the agency to provide the procedural safeguards that will ensure their rights. When the stakes are so high for so many, we must . . . fulfill our obligation to take this extraordinary step.”
The appellate court’s conclusion, which is immensely important to our nation’s disabled veterans returning from recent wars, came almost four years after two veterans organizations filed a lawsuit in the United States District Court for the Northern District of California. This lawsuit, the first of its kind in the country, sought to prohibit the VA from continuing a number of improper practices in handling claims for health care and disability benefits.
Most disabled veterans cannot receive medical treatment without a disability claim approval. However, at the time this lawsuit was filed, the VA had a growing backlog of over 600,000 claims, and a decision on a claim took an average of more than four years, and could take up to twelve to fifteen years. Some pending claims go back to the Vietnam era. In the meantime, many disabled veterans give up in despair or frustration, fall into drug or alcohol dependency, or commit suicide. Even after claims have been approved, veterans face ongoing problems receiving care. Because the demand for medical care and treatment by the VA has risen dramatically since the U.S. became involved in the conflicts in Iraq and Afghanistan, the VA has long waiting lists and, in some cases, no appropriate treatment for disabled veterans is available. The Court of Appeals noted that on an average day, eighteen veterans of our nation’s armed forces take their own lives, and roughly one-quarter of those are enrolled in the VA’s health care system. Among all veterans enrolled in the VA system, an additional 1,000 attempt suicide each month.
The suit claims that numerous VA practices violate the constitutional and statutory rights of veterans with Post Traumatic Stress Disorder (PTSD) by denying veterans adequate procedural safeguards in the VA benefits process, access to the judicial process, mandated medical care, and VA benefits as a result of their PTSD. In addition to seeking a declaration from the court that these practices violate the constitutional and statutory rights of the Plaintiffs, the lawsuit seeks an injunction preventing the defendants from continuing certain policies and procedures. No damages are being sought. Plaintiffs in the case include two non-profit organizations, Veterans for Common Sense and Veterans United for Truth, on behalf of all veterans who are seeking or receiving health care or disability benefits from the VA. Plaintiffs are represented by the California-based public interest legal center Disability Rights Advocates (DRA) and co-counsel Morrison Foerster.
In describing the plight of veterans with PTSD and other severe mental health problems who must wait weeks for mental health referrals and are given no opportunity to request or demonstrate their need for expedited care, sometimes resulting in suicides, the Court of Appeals stated: “Like the cavalry of Alfred, Lord Tennyson’s ‘Charge of the Light Brigade,’ these veterans may neither ‘make reply’ nor ‘reason why’ to the ‘blunder’ of those responsible for their safety.” Accordingly, the Court concluded: “The VA’s unchecked incompetence has gone on long enough; no more veterans should be compelled to agonize or perish while the government fails to perform its obligations.”
Among those veterans suffering the most are Iraq and Afghanistan troops returning home with mental disabilities. As many as 15-50% of returning troops have PTSD, according to the complaint. These troops are being deprived of critical mental health services, especially in the early phases of the illness when identification and treatment are crucial. Left untreated, severe PTSD can lead to substance abuse, depression, and suicide. Veterans with PTSD and other psychiatric disabilities may also be the most unprepared to face the bureaucratic battles necessary to secure the benefits to which they are entitled.
The suit alleges that the VA has not only shortchanged the disabled veterans for whom they are supposed to provide care, but it has also consistently presented misleading statistics to the American public. Specifically, the complaint says that the VA has falsely understated the length of time it takes to decide a veteran’s claims and the true cost of caring for disabled veterans.
“Our Iraq and Afghanistan war veterans want immediate access to high-quality VA healthcare and benefits when they return home,” says Paul Sullivan, Executive Director for Veterans for Common Sense. “After the terrible failures following the Vietnam War and Gulf War, never again shall our government turn its back on our veterans when they return home from war. We must do everything we can to prevent more veterans from falling in the cracks that lead to broken families, unemployment, alcoholism, drug abuse, crime and homelessness. When one of our combat veterans walks into a VA hospital, then they must see a doctor that day. When a war veteran needs disability benefits because he or she can't work, then they must get a disability check in a few weeks. Since the Iraq and Afghanistan wars began, the VA has betrayed our veterans. Instead of hiring more doctors and claims processors, the VA instituted new policies that block veterans’ access to prompt mental healthcare. America should be outraged. While we are reluctant to file suit against the VA, it is the VA’s anti-veteran policies that leave us no other option than to fight for what our veterans earned after fighting on the front lines in Iraq and Afghanistan.”
The government may choose to pursue further appeals in the case rather than work with veterans and their attorneys to fix the VA’s broken system. Nevertheless, the district court already has indicated its intention to proceed extremely rapidly with remedial proceedings once it regains jurisdiction over the case. Plaintiffs are optimistic that such proceedings can result in system-wide, lasting improvements in the VA’s systems and operations for delivering health care and other benefits to veterans who so desperately need them.
PTSD is a psychiatric disorder that can develop in a person who witnesses, or is confronted with, a traumatic event. PTSD is the most prevalent mental disorder arising from combat. According to the complaint, “more than any previous war, the wars in Iraq and Afghanistan are likely to produce a high percentage of troops suffering from PTSD,” due to the widespread use of improvised explosive devises, multiple rotations, the ambiguity of fighting combatants dressed as civilians, and the use of National Guard members and Reservists.
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