Fight for Vets with PTSD in the 9th Circuit Court

What does it mean to be a veteran today?

9th Circuit Court Chief Judge Alex Kozinski and Attorney Gordon Erspamer. Courtesy: C-SPAN

(SALEM, Ore.) - The groups Veterans for Common Sense and Veterans United For Truth took their case for Post Traumatic Stress Disorder to the 9th Circuit Court in San Francisco in August.

The groups are asking the court to order the Department of Veterans Affairs to reform the way it deals with disability claims for Post Traumatic Stress Disorder and Traumatic Brain Injury.

Science Daily writes, "Nearly 20 percent of military service members who have returned from Iraq and Afghanistan -- 300,000 in all -- report symptoms of post traumatic stress disorder or major depression, yet only slight more than half have sought treatment, according to a new RAND Corporation study."

According to the National Institute of Mental Health, "Approximately 7.7 million American adults age 18 and older, or about 3.5 percent of people in this age group in a given year, have PTSD." They state that, "PTSD can develop at any age, including childhood, but research shows that the median age of onset is 23 years." NIMH reports that about 19 percent of Vietnam veterans experienced PTSD at some point after the war.

Attorney for Combat Veterans

Representing the veterans groups, Attorney Gordon Erspamer explained to the justices how veterans suffering from advanced war-related stress are dying before their cases can be approved.

Erspamer opened by saying, "The essence of this appeal relates to the VA's multiple failures to fulfill the statutory commands established by Congress to provide veterans with timely medical care and disability compensation, which has resulted in suicides and other tragic circumstances for our veterans."

He says veterans are, "struck at the outset by a fundamental disconnect between the district court's finding of facts - and its legal analysis."

Erspamer offered the details, of how 3,000 veterans die each year while their appeals are pending, that it takes 4.4 years on average to exhaust the due process in the VA, and that 85k veterans are on waiting lists for healthcare.

His statements about the various inequities suffered by veterans didn't fall on deaf ears, but a defensive mechanism in Chief Judge Alex Kozinski seemed to spark to life.

The Federal Defensive Mechanism

Kozinski compared the agonizing years and months during which veterans languish with complicated disorders, to the waiting periods for social security claims and immigration claims, thus offering no clear delineation whatsoever for the combat veterans.

"This is sort of the nature of life", Kozinski said.

It seemed clear that veterans were never the concern when the Justice said, "If we were to rule in your favor, how do you keep the federal courts from taking over every single agency in the federal government and running it?"

"I'm wiling to say that most agencies in the federal government do things that are not satisfactory to people; they are too slow, don't deal the issues, there are many complaints that people have against them."

Kozinski continued, "We've got lots of agencies that are slower than what people prefer."

Underscoring the mission of Veterans United For Truth and Veterans for Common Sense; one that is reasonable and logic based, Erspamer told Kozinski, "We are dealing with very egregious delays."

Kozinski brushed that off, saying, "The Social Security Administration had a series of cases dealing with time delays of 30 to 90 days."

Erspamer says American combat veterans lost in the underfunded and unregulated Veterans Administration wait for up to 12, 13 and 14 years.

"I didn't mean to suggest they were as slow", Kozinski replied.

It goes far beyond the contrast in timeframes, Erspamer says. With SSI a person has a right to attain council, and with the VA a veteran does not.

Veterans Judicial Review Act

There are not very many cases involving veterans since the Veterans Judicial Review Act of 1988 was launched. It was supposed to resolve an inequity that veterans had faced for generations.

Veterans advocates explain that for 125 years, beginning in the 1860's, there was no judicial recourse for veterans who were denied benefits. The Department of Veterans Affairs (DVA), formerly the Veterans Administration, was virtually the only administrative agency that operated free of judicial oversight.

According to uscourts.gov, "Veterans whose claims for benefits were denied by the Veterans Administration were afforded no independent review of DVA decisions and were denied the right afforded to many other citizens to go to court and challenge similar agency decisions. The Board of Veterans' Appeals provided the final decision of what could be a long, arduous adjudication process for a veteran's claim."

"The status quo of no judicial review of veterans claims persisted until an influx of post-Vietnam claims in the 1970s and 80's directed the spotlight on an adjudication process that was in obvious need of reform."

In spite of growing pressure from veterans advocates, the House Committee on Veterans' Affairs resisted as long as they could, efforts to alter the DVA's policies, which were often explicitly insulated from judicial review.

That was in 1988. Since then the United States has launched a series of wars, and many veterans advocates see the fight as nearly having reverted to stage one.

No Neutral decision makers in VA

"We're talking about emergency healthcare". Erspamer talked about the rash of suicides from veterans returning from Iraq and Afghanistan, "The record shows at least some veterans have been turned away from facilities."

"There is no emergency procedure to find any relief. The adjudication system doesn't even apply," Erspamer said.

Kozinski seemed to be unaware of the current situation regarding veterans, in spite of his position. He said to Erspamer, "If there is a medical situation they turn away, that is appealable.

Erspamer said, "Medical decisions are not appealable, the only procedure they have is called the Clinical Review Procedure which does not ever apply in this case."

Moreover, he says three aspects of the review have no time limits, and no assurance of reasonable or expeditious treatment. The actual process of review ends at the seventh stage, the VA itself is the agency with the ultimate power to decide. From the beginning, veterans are dealing with an agency with limited funds.

In the end, the attorney says it is hard to compare the Veteran's Administration to Social Security or Immigration, "You have to differentiate the VA from every other system," he said.

Kozinski then suggested that these claims have to be brought up one at a time, "Why isn't this raised as an individual claim, and properly taken to the Federal Circuit?"

"The claim in this case is that there are systemic delays," Erspamer said, as the judge discussed what could be interpreted as nothing less than a varying array of additional delay strategies.

Erspamer says there is no remedy for systemic delay.

He talked about a process in the Veterans Court called "Extraordinary Writs of Mandate".

He says in reviewing the record of veterans seeking extraordinary relief, it is revealed that, "Between 1998 and 2004 there were none heard. Then in 2005 there was one. In 2006 there were zero. In 2007 there were two, and that includes all types of writs".

The time has come for the court to act, these are not problems of recent origin.

Kovinski deferred submission of the case for a week, saying, "I'd like to see if there is a possibility of working something out in the case and I realize on this side of the table it is something that would require permissions and approvals."

"This is one of those things that is very difficult for a court to manage."

He encouraged the attorneys representing the two sides to seriously discuss the matter and also referenced an on-site mediator as a possibility of helping them work out the differences.

The court seemed reluctant to aggressively intervene, yet offered a measure of hope.

Many Americans may not be aware of the efforts of groups like Veterans for Common Sense and Veterans United for Truth and other emerging groups that sanely and consistently rally and lobby for the rights of the nation's veterans.

Veterans United For Truth and Veterans for Common Sense v. Shinseki, Case # 08-16728, was heard by the Ninth Circuit Court of Appeals at 9:30 a.m. PT August 12th 2009, in San Francisco. The suit was first filed against Secretary Nicholson, then successively against Secretaries Peake and Shinseki.

Sources:

• sciencedaily.com
• uscourts.gov
• nimh.nih.gov
• c-spanarchives.org