Federal Appeals Court Ruling that Could Affect A Large Number of Veterans

‘Our Veterans Deserve Better,’ and Lawsuit Shows It 

Written by Rubén Rosario
     
While angry folks with legitimate concerns or hidden agendas were busy shouting at politicians at televised town-hall gatherings this week, a court hearing held on another critical health care debate drew scant attention.

Oral arguments were heard Wednesday before a federal appeals court in California in connection with a 2007 class-action lawsuit filed by two veterans advocacy groups – Veterans for Common Sense and Veterans United for Truth.

Never heard of it?

You should. It’s about the plight of the men and women we send into harm’s way. It also has a strong Minnesota link. Here’s a quick overview:

The suit alleges that the Department of Veterans Affairs’ inability to handle disability claims in a timely or expedient fashion is so dysfunctional that it violates veterans’ constitutional and statutory rights. The backlog – a good number of unresolved claims dating to the Vietnam War – may surpass the 1 million mark this fall, according to estimates from veterans advocates. The VA places the backlog at a lower but still hefty 463,000.

The lawsuit also alleges that the VA has been derelict in its legal duty to provide immediate, competent and effective care for military members grappling with post-traumatic stress disorder and thoughts of suicide.

"Justice delayed is justice denied, and that’s what we essentially have here," said Gordon Erspamer, a Grand Rapids, Minn., native and Hamline University graduate. "For all these disabled veterans, the court is the last resort for injunctive relief."

The suicide of a Minnesota Marine who served in Iraq is among numerous cases of alleged medical neglect cited in the lawsuit.

Jonathan Schulze, 25, took his life in January 2007. Relatives maintain the suicide took place five days after Schulze, who was diagnosed with PTSD, was turned away from a VA hospital in St. Cloud while seeking help. The VA denied Schulze was turned away. It also stated there was no record of Schulze talking about taking his life. Schulze’s father, a Vietnam combat veteran, has accused the VA of a cover-up.

The VA, in response to the class-action lawsuit, argued that the case had no merit and that the court had no legal authority over it. It moved to kick the suit out of court. U.S. District Judge Samuel Conti ruled against summary judgment and ordered a bench trial that took place last year.

In the end, Conti ruled against the veterans groups after hearing three weeks of testimony. He essentially concluded the judiciary has no power to force the VA by court decree to change its policies regarding disability claims.

"The remedies sought by plaintiffs are beyond the power of this Court and would call for a complete overhaul of the VA system, something clearly outside of this Court’s jurisdiction," Conti wrote.

But he didn’t let the VA off the hook.

"The VA may not be meeting all of the needs of the nation’s veterans," Conti added in an 82-page decision. The ruling’s "findings of facts" section should be required reading for every American. It details not only the plight of disabled veterans who need or seek mental health services, but also the challenges faced by the federal agency itself.

’18 SUICIDES A DAY’

I culled the following nuggets from the judge’s written decision:

# There are about 25 million veterans in the United States today. As of May 2007, 5 million to 8 million were enrolled in the VA.

# On any given night in the U.S., an estimated 154,000 veterans are homeless.

# Of the more than 1.6 million men and women who have served in Iraq and/or Afghanistan since October 2001, some 803,757 were eligible at the end of 2007 for VA health care.

# The VA conceded at trial that it had a "broad obligation and moral imperative" to care for veterans, including those who complained of long wait times for PTSD treatment and difficulties in accessing care.

# A 2008 study by the Rand Corp. found that almost 20 percent of returning soldiers have PTSD. About half seek treatment. Of those, more than half receive "minimally adequate care." Equally troubling is the study’s finding that about 300,000 soldiers now deployed to the two war fronts "currently suffer PTSD or major depression."

# Another study last year found that the suicide rate among veterans is about 3.2 times higher than that of the general population.

Some of the most interesting and sobering pieces of evidence from the trial were internal VA e-mails by Dr. Ira Katz, the VA Office of Mental Health’s deputy chief of patient care services.

In one e-mail, Katz reported there were "18 suicides a day" among veterans and that the agency’s own records indicate "4-5 suicides per day among those who receive care from us."

"Our suicide prevention coordinators are identifying about 1,000 suicide attempts per month among the veterans we see in our medical facilities," Katz wrote in another e-mail last year. "Is this something we should (carefully) address ourselves in some sort of release before someone stumbles on it?" ("Carefully" was in parentheses in the original.)

Yes, Sherlock. I will deal with this issue on a more human level in my upcoming column Sunday.

VA MAKES SOME MOVES

Now, I believe the judge may have pegged this one right on strictly legal grounds.

Erspamer, a San Francisco-based attorney who specializes in civil litigation involving energy utilities, thinks Conti got it wrong. He filed an appeal and argued his case Wednesday before a three-judge panel of the 9th U.S. Circuit Court of Appeals.

In the appeal, the veterans groups note that it takes an average of 4.4 years to resolve a claim from the time it is filed to an ultimate decision by the Board of Veterans Appeals.

"The wait times are so long that at least 1,467 veterans recently died in a six-month period during the pendency of their appeals, thus extinguishing their claims," the appeals brief states.

Erspamer took on the case pro bono and for personal reasons. He said his father, Ernest, a World War II Navy veteran, was exposed to radiation contamination during Operation Crossroads, a series of nuclear bomb tests in the Pacific during the summer of 1946. His father, also known as Bud, died of leukemia a year after he filed a disability claim based on the radiation exposure. Erspamer said the VA granted the claim 11 years later in 1990.

"Our veterans deserve better than this," Erspamer said.

Perhaps the lawsuit lost in court but won outside it. The VA seems to be heading in the right direction in recent months. It has reported cutting the backlog of unresolved claims from 600,000. It is hiring additional medical staff. It established a PTSD and suicide-prevention program and research initiatives. It also launched a national suicide hotline – 800-273-8255 – that has fielded more than 150,000 calls.

The VA also reports that agency mental-health professionals helped stop about 3,200 suicides "in the process."

Far more, though, needs to be done. Perhaps a series of town-hall meetings on this topic is in order. But unlike the circus we saw this week, we need constructive, not destructive, dialogue.

Rubén Rosario can be reached at 651-228-5454.

Click Here to read transcripts from today’s hearing.

TwinCities.com
 
Federal Appeals Court Hears Vets’ Appeal on Mental Health Delays
Written by Bob Egelko
Thursday, 13 August 2009 08:52       
August 13, 2009 – Military veterans’ advocates took their complaints of a dysfunctional mental health system to a federal appeals court Wednesday and were urged by the chief judge to negotiate improvements with the government.

"It’s very difficult for the court to manage" the Department of Veterans Affairs, which oversees mental health care for veterans, Chief Judge Alex Kozinski told lawyers at the end of a hearing at the Ninth U.S. Circuit Court of Appeals in San Francisco. "It’s much better if the parties manage it together. … You can have winners on both sides."

But Justice Department attorney Daniel Scarborough told Kozinski the government was "not optimistic this is something that can be settled."

Gordon Erspamer, lawyer for Veterans for Common Sense and Veterans United for Truth, argued during the hearing that the VA subjects veterans to long delays in mental health care and has shown few signs of improvement.

"The time has come for a court to act," Erspamer said.

Kozinski said the court would issue a ruling at a future date unless the two sides settle the dispute in a week or ask for more time.

The advocacy groups sued the government in 2007, saying the VA had made mental health care virtually unavailable to thousands of discharged soldiers through perfunctory exams, delays in referrals and treatment, and a bewildering benefits system.

They cited internal e-mails, released in response to the suit, that reported 18 suicides a day among all veterans and 1,000 suicide attempts a month among the 30 percent of veterans under VA care.

The department has a backlog of 900,000 disability claims, averages nearly 4 1/2 years to decide veterans’ appeals of benefit decisions and does not allow lawyers to represent veterans in their initial claims, the groups said.

Even the VA’s emergency rooms often put veterans on a waiting list to be treated for mental trauma, Erspamer told the court, and sometimes "they go back and kill themselves."

After hearing the same evidence at a nonjury trial, U.S. District Judge Samuel Conti said in June 2008 that the VA was too slow to provide care but that courts lack authority to make the sweeping changes the advocates proposed.

Those changes include requiring faster decisions and improved mental health care and suicide prevention programs. The advocacy groups also wanted the VA to allow legal representation and independent review of benefit decisions.

On Wednesday, Kozinski expressed a view similar to Conti’s.

"You’re asking us to take over the VA and run it," Kozinski told Erspamer. "I’m skeptical where we get the authority to do that."

But Judge Stephen Reinhardt said that when the government doesn’t follow the law, "it’s not novel for a court to tell an agency to comply.