Jul 24, 2007

PTSD Vets File Class Action

Veterans diagnosed with PTSD know well the VA's systemic hostility to disability claims. Now, vets have filed an unprecedented class action lawsuit with the powerhouse legal firm, Morrison & Foerster LLP, which is taking the case pro bono.

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Class Action Filed Challenging Government’s Mistreatment of Returning Veterans Suffering From Post-Traumatic Stress Disorder


Veterans’ Civil Rights Case, first of its kind, includes Department of Veterans Affairs and U.S. Attorney General Gonzales as defendants; focuses on veterans from Iraq and Afghanistan conflicts; alleges “unconscionable delays” and other violations of veterans’ constitutional and civil rights

SAN FRANCISCO/WASHINGTON (July 23, 2007) --Attorneys at Morrison & Foerster LLP have filed an unprecedented national class action lawsuit alleging “shameful failures” by the U.S. Department of Veterans Affairs (“VA”) and other government institutions to care for those veterans who have returned from Iraq and Afghanistan and are now suffering from post-traumatic stress disorder (“PTSD”). The firm is handling the case on a pro bono basis.

The action was brought on behalf of veterans and their families seeking or receiving death or disability compensation for PTSD, as well as those who have pending claims or who have applied for VA medical benefits based upon the disorder. The complaint was filed in the U.S. District Court, Northern District of California.

Morrison & Foerster estimates the class size as between 320,000 and 800,000 veterans, by multiplying the number of military personnel serving in Iraq and Afghanistan (1.6 million) by the estimated percentage of PTSD amongst the returning troops (20% to 50%). The non-profit Veterans for Common Sense and Veterans United for Truth are among the plaintiffs.

Defendants include R. James Nicholson, Secretary of the VA (who resigned on July 17, effective later this year); Alberto Gonzales, Attorney General of the United States, Dr. Michael Kussman, Under Secretary of the Veterans Health Administration; Daniel L. Cooper, Under Secretary for the Veterans Benefits Administration, Pritz K. Navara, Veterans Service Center Manager, VA Oakland Regional Office, and various other government officials.

The plaintiff class seeks declaratory and injunctive relief only – no monetary damages – and challenges the constitutionality of the Veterans Judicial Review Act, and related administrative policies and procedures. Plaintiffs allege a number of policy failures on the part of the VA, including:

repeated violations of federal statutes guaranteeing health care for returning veterans;
unconscionable delays and prohibitively complicated procedures in the adjudication of claims seeking benefits or medical care and appeals, coupled with the VA’s providing misleading timeliness statistics to the American public;
the VA’s premature and intentional denial of claims, and other administrative abuses calculated to boost incentive bonuses for VA employees;
exertion by VA officials in Washington, DC of bureaucratic pressure and influence upon the adjudication of PTSD claims by regional VA offices; and
a pattern of chronic under-funding and under-staffing of VA programs.
According to Gordon P. Erspamer, a litigation partner in Morrison & Foerster’s Walnut Creek office: “This isn’t a case about isolated problems or the type of normal delays and administrative hassles we all occasionally experience with bureaucracies. This case is founded on the virtual meltdown of the VA’s capacity to care for men and women who served their country bravely and honorably, were severely injured, and are now being treated like second-class citizens.”

“The delays caused by the VA have created impenetrable barriers to relief for thousands of impaired veterans, whose suffering is compounded by a VA system that denies them their fundamental constitutional and civil rights that all the rest of us share,” Mr. Erspamer added.

Mr. Erspamer is acutely aware of the plight of veterans with serious health problems having to endure interminable waits for treatment and benefits from the government. His own father, Ernest, was exposed to extensive radiation during atomic bomb tests in the Pacific Bikini Atoll in 1946 and later developed leukemia, which took his life in 1980. Even with her son’s help, it then took his mother more than ten years to obtain disability and death benefits from the VA, a journey that included the first case ever heard or decided by the newly created Court of Veterans Appeals (now Court of Appeals for Veterans’ Claims) in 1990. Erspamer v. Derwinski, 1 Vet. App. 3; 1990 U.S. Vet. App. LEXIS 1. Morrison & Foerster also represented the National Association of Radiation Survivors in the landmark due process case of NARS v. Walters, 473 U.S. 305, which addressed many of the same types of abuses as today’s filing.

Paul Sullivan, Executive Director of Veterans for Common Sense, explained his organization’s participation in the class action: “Since the Iraq and Afghanistan wars began, VA has betrayed our veterans. Instead of hiring more doctors and claims processors, VA instituted new policies that block veterans’ access to prompt mental healthcare. America should be outraged. While we are reluctant to file suit against VA, it is 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.”

Bob Handy, Chair of plaintiff group Veterans United for Truth, emphasized the non-partisan nature of the suit, stating that “We believe that this is a case that all points of the political spectrum will support, as regardless of one’s views on the current wars, we all share the strong belief that we should take care of those who die or are wounded in battle.”

The current complaint explains how the large influx of veterans from Operation Enduring Freedom in Afghanistan and Operation Iraqi Freedom in Iraq has finally crippled a long-struggling system — with 200,000 new disability claims arising from these two actions alone. The complaint further reveals the existence of over 600,000 back-logged claims covering all manner of illness, with many taking more than 10 years to be fully adjudicated.

The Plaintiffs assert that the existing VA system for obtaining benefits or medical care is especially ill-suited for dealing with PTSD. The complaint cites a recent report issued by the Defense Department’s Task Force on Mental Health, which found that 38% of soldiers and 50% of National Guard members who have served in Iraq or Afghanistan report mental health issues ranging from post-combat stress to brain injuries.

“PTSD is prevalent in troops returning from the current wars because of multiple rotations into combat, the absence of battle lines, widespread use of improvised explosive devices, the moral ambiguity of killing combatants dressed as civilians, the unprecedented use of National Guard and Reserve troops, and the use of body armor that saves lives but leaves minds and bodies shattered,” the complaint explains.

The complaint further alleges that federal government officials have improperly induced many soldiers suffering from PTSD to accept “personality disorder” discharges, precluding veterans from obtaining disability benefits or receiving ongoing medical treatment because the disorder is then classified as a pre-existing condition.

“More than 22,500 soldiers across the armed forces have been suspiciously diagnosed and discharged with ‘personality disorder’ in the last six years, condemning them to a lifetime of disability without any compensation or access to VA medical care,” the complaint states.

“Many of these veterans simply give up in frustration and despair or die—some committing suicide,” added Morrison & Foerster’s Mr. Erspamer.

The complaint summarizes: “Unless systemic and drastic measures are instituted immediately, the costs to these veterans, their families, and our nation will be incalculable, including broken families, a new generation of unemployed and homeless veterans, increases in drug abuse, increases in alcoholism, and crushing burdens on the health care delivery system and other social services in our communities.”

For further information, please contact lead counsel for Plaintiffs, Gordon P. Erspamer, 925-295-3341, GErspamer@mofo.com.

Other sources for information include Russell K. Terry, CEO/Founder, Iraq War Veterans Organization, Inc., 909-494-6218, webmaster@iraqwarveterans.org, Ronald B. Abrams, Deputy Director, National Veterans Legal Services Project, 202-265-8305, ron_abrams@nvlsp.org, Michael Blecker, Executive Director, Swords to Plowshares, 415-252-4787, extension 321, mblecker@stp-sf.org, and Amy Fairweather, Director of Iraq Veteran Project, Swords to Plowshares, 415-252-4787, extension 356, afairweather@stp-sf.org.

The complaint can be viewed at http://www.mofo.com/docs/pdf/PTSD070723.pdf


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