Fed Court Rules in PTSD Class Action Suit: Vets Should Seek Remedy in Congress and Dept of VA

via mal contends

Just in from Veterans for Common Sense:

The federal government is subjecting veterans to long delays in obtaining mental health care and medical benefits, but the power to change the system rests with officials and Congress, not the courts, a federal judge in San Francisco ruled Wednesday in dismissing a lawsuit by veterans' advocates.

The case, argued pro bono by attorneys at Morrison and Foerster, was a victory in established that veterans are experiencing unconscionable delays in seeking health care treatment.

But the relief will have to come from Congress.

From Veterans United for Truth

The Newsletter of VETERANS UNITED FOR TRUTH, Inc. “
Veterans standing up for each other”
26 June 2008

The judge has spoken. We’re gonna keep on truckin’

June 25, 2008

MEDIA ADVISORY

JUDGE RULES THAT VETS IN PTSD CASE SHOULD SEEK RELIEF FROM CONGRESS — VETS RESOLVE TO APPEAL

WHAT: Decision After Trial—VCS, et al. v. Peake, et al.
JUDGE Senior Judge Samuel Conti, United States District Court, Northern District of California.

Senior Federal District Court Judge Samuel Conti has issued his decision in the landmark case brought on behalf of veterans suffering from PTSD and traumatic brain injury in July of 2007.

The trial was conducted from April 21-30, 2008, and included a week of testimony in early March. The trial focused on the Department of Veterans Affairs (VA) health care and adjudication systems for disabled veterans. The trial included testimony from the heads of national veterans’ organizations, top VA officials and some of the leading experts in the country on the widespread failings of the VA system.

In his decision, Judge Conti held that it is “clear to the Court” that “the VA may not be meeting all of the needs of the nation’s veterans.” He agreed with, and explicitly adopted, many of the factual assertions made by the veterans. Those include the following:

• “The suicide rate among veterans is significantly higher than that of the general population,” and there is “a strong connection between PTSD and suicide.”
• “One out of every three soldiers returning from Iraq was seen in the VA for a mental health visit within a year of their return” with PTSD being a “leading diagnosis.”
• “The high rates of PTSD among Iraq veterans are the result of various factors, including multiple deployments, the inability to identify the enemy, the lack of real safe zones, and the inadvertent killing of innocent civilians, ” as top VA officials admitted.
• “Initiatives such as screening veterans at risk, a suicide prevention database, emerging best practices for treatment, and education programs were all still at the ‘Pilot Stage’ three years” after VA’s Mental Health Strategic Plan was adopted.
• “It is beyond doubt that disability benefits are critical to many veterans and any delay in receiving these benefits can result in substantial and severe adverse consequences.”
• The VA’s track record with respect to delays in processing veterans’ appeals “is troubling.” It is taking veterans on average 4.4 years to adjudicate a benefits claim at the first two levels in the VA benefits system.

Nonetheless, Judge Conti concluded that the power to remedy this crisis lies with the other branches of government, including Congress and the Secretary of the Department of Veterans Affairs, holding VA’s failures to meet veterans’ needs are “beyond the power of this Court” and would “call for a complete overhaul of the VA system.”

Judge Conti’s opinion states that Congress, and not the courts, needs to resolve the crisis facing our nation’s veterans. This underscores the importance of the ongoing congressional hearings that seek to find the truth, and to address the problems faced by our veterans.

Now, more than ever, it is critical that Congress act. Plaintiffs very much appreciate Judge Conti's consideration, but disagree with his legal conclusions. Accordingly, Plaintiffs plan to appeal to the United States Court of Appeals for the Ninth Circuit so that these important legal questions can be addressed by a higher court.

The full text of the decision can be found at www.veteransptsdclassaction.org.

Paul Sullivan, Director of Veterans for Common Sense, commented that, “This ruling will only cause us to redouble our efforts and our pursuit of justice for our nation’s veterans. We will not rest until our job is finished.”

Bob Handy, the Director for Veterans United for Truth, added: “Every time we feel discouraged or need to find our way, we always return to the VA’s motto, ‘To Care for Him Who Hath Borne the Battle, and His Widow and His Orphan,’ and that tells us what we need do.”

“The decision, if upheld on appeal, would suggest that veterans have no enforceable rights in America, and the Constitution does not apply to veterans.
For all Americans, the implications of this decision are profoundly disturbing,” remarked the lead counsel for Plaintiffs, Gordon Erspamer.

“Our fight on behalf of our veterans will continue.” Sid Wolinsky added, “I know that we will not rest until victory has been achieved and the suffering of our veterans ceases.”

Tragically, the VA has been neglecting wounded veterans returning from service in Iraq and Afghanistan who are in desperate need of ongoing care and support, including medical treatment and disability payments for living expenses.

Among those suffering the most are returning veterans with mental disabilities such as post-traumatic stress disorder (PTSD). Veteran suicides have reached an epidemic level, with over 120 veterans taking their own lives every week, and 1,000 suicide attempts per month amongst veterans under VA care. This lawsuit was unprecedented in directly challenging the VA’s 600,000 case backlog in handling claims, appellate delays of five to ten years, the waiting lists that veterans face before receiving health care, and the inadequacy of VA care for PTSD.

The trial brought to light many critical facts that the VA had tried to conceal or downplay. An internal e-mail from the VA’s head of mental health, Dr. Ira Katz, surfaced during the trial. At a time when the VA was reporting only 790 veteran suicide attempts in all of 2007, Katz wrote, “Shh!...Our suicide prevention coordinators are identifying about 1,000 suicide attempts per month…Is this something we should (carefully) address...before someone stumbles on it?” At trial it was also disclosed that the suicide rate of veterans is at least three times the national suicide rate and in 2005, the suicide rate for veterans 18-24 years old was three to four times higher than non-veterans.

We are grateful to Judge Conti for hearing our case and for allowing a public display of VA’s enormous systemic failures.

Client Contacts:

Paul Sullivan, Veterans for Common Sense
(202) 491-6953

Robert M. Handy, Veterans United for Truth
(805) 455-5259 Counsel:

Gordon P. Erspamer, Arturo J. González, Heather A. Moser
Morrison & Foerster LLP, Lead Counsel (415) 268-7000
Sid M. Wolinsky, Ron Elsberry, Kasey Corbit, Disability Rights Advocates (510) 665-8644

Attempt to Halt Vets' Suit Against VA Fails, DOJ Shot Down

Good news. The class action lawsuit filed against the US Dept of Veterans Affairs (VA) on behalf of veterans proceeds forward. (Jim Cook of Veterans United for Truth is pictured above-right.)

But one can expect the Bush administration to fight the veterans every step of the way.

From the San Francisco Chronicle:

Veterans' advocates can proceed with a lawsuit claiming that the federal government's health care system for troops returning from Iraq and Afghanistan illegally denies care and benefits, a federal judge in San Francisco ruled Thursday.

U.S. District Judge Samuel Conti, a conservative jurist and a World War II veteran, rejected Bush administration arguments that civil courts have no authority over the Department of Veterans Affairs' medical decisions or how it handles grievances and claims.

If the plaintiffs can prove their allegations, Conti said, they would show that "thousands of veterans, if not more, are suffering grievous injuries as the result of their inability to procure desperately needed and obviously deserved health care."

For more information: See Veterans for Common Sense et al. v. Nicholson; Case No. C 07 3758, U.S.D.C. (N.D. Cal. 2007).

###

Law Firms Rushing to Veterans' Aid

The U.S. Dept of Veterans Affairs (VA) is infamous for its culture of claim denial (like a particularly mean health insurance company) and its systemic bureaucratic hostility to veterans.

But increasing numbers of civilian attorneys are stepping up to the plate to assist veterans.

"The need is staggering," said Gordon Erspamer, a Morrison and Foerster attorney in Walnut Creek, Calif., who has worked on veterans' cases since the 1970s. (Lynne Marek, The National Law Journal)

Morrison and Foerster is engaged in an unprecedented, class action, pro bono case on behalf of 100,000s of vets returning from Iraq and Afghanistan and suffering from Post Traumatic Stress Disorder (PTSD).

Lynne Marek of The National Law Journal has a great piece on attorneys battling the VA on behalf of veterans.

Reports Marek:

Veterans who had some kind of representation got $6,225 more annually, on average, than those who didn't, according to a 2005 Veterans Affairs Inspector General report. That principle held true in the first case resolved by the University of Detroit Mercy School of Law clinic, begun this month. The clinic helped a Vietnam War veteran increase his monthly disability compensation to $2,600 from $350 by helping him apply for a benefit related to his inability to work, said professor Joon Sung.

Another example is Michigan attorney Robert Walsh, who is an ex-VA staff attorney now working with veterans to keep them from being shortchanged by the VA.

Walsh, a gruff Army Vietnam veteran, maintains an informal network of attorneys who know what is becoming common knowledge on Capital Hill: That the VA is systemically operating to deny returning veterans aid and benefits.

"To understand how the VA operates is to see a culture of denial. There are regulations in place to protect veterans, and they ought to be followed, " said Walsh.

Walsh is representing Wisconsin Navy veteran Keith Roberts who is a victim of VA retaliation against Roberts for Roberts' repeatedly criticizing the VA as fraudulent and incompetent. In the middle of Roberts' claim, the VA ignored VA regulations and went straight to U.S. Atty Stephen Biskupic to indict and convict Roberts on federal wire fraud on the merits of his disputed VA benefits claim.

In one of the many ironies of the Bush administration, those most opposed to assisting veterans are those most dedicated to making and sustaining war.

If a small fraction of the Vietnam war veterans still suffering from PTSD were to file for disability benefits, the federal government would be forced to pay the costs roughly equal to what is spent in two months sustaining the war in Iraq.

But many rightwingers pooh pooh the notion that Vietnam-era veterans, for example, might still suffer today from the effects of their service. [Author's note: If you are going to make this argument, do it from the safe confines of plush D.C. think tanks, and don't tell veterans this crap to their faces.]

Paul Sullivan of Veterans for Common Sense is another veteran (and former VA project manager) who now helps other veterans obtain the respect and the benefits to which they are entitled against the Bush administration taking its cues from the veterans’ benefits-hostile American Enterprise Institute scholar, Dr. Sally Satel.

Writes Sullivan is his blog: "Our 4,077 U.S. military deaths in the Iraq and Afghanistan wars are the worst possible consequence of military service. Yet what about our 250,000 wounded, injured, and ill combat survivors and their families who suffer for a lifetime?"

As the veterans criminal and civil cases increasingly land in federal court and the backlogs of veterans cases pile up at the VA, some observers see major revisions coming of the Veterans Judicial Review Act, the legislation intended to streamline the process for veterans of obtaining their needed and deserved treatment and benefits.
###