may 5, 2011

A Historic Ruling for Veterans Care

With the 9th Circuit’s ruling in Veterans for Common Sense v. Shinseki, Major Changes Coming to the VA

The decision by Ninth Circuit Court of Appeals, seen above, may forever change how the VA operates.

WASHINGTON, DC - Appeals by veterans to the VA regarding their disability rating take so long that “in just the six months between October 2007 and April 2008, at least 1,467 veterans died during the pendency of their appeals.” This was the determination of the majority in the case of Veterans for Common Sense v. Shinseki, a landmark ruling for veterans that will have enormous impact on the future of VA care.

For decades, Veterans have long struggled with a VA system that would drag its heels in the mud when dealing with military personnel and the care and benefits provided. It had become so bad that it was understood universally by veterans that the VA was not helping them with any of the things that they needed. Mainly due to backlogs in the system and inefficiency overall, veterans were forced to suffer interminable delays when seeking assistance, often waiting over 4 years to see any of their requests for help realized.

After this past Wednesday, all of that seems like it is about to change.

In this historic decision, the Ninth Circuit Court of Appeals ruled that Veterans were denied their Constitutional Due Process right to timely health care and benefits by the VA’s delays. Now, barring an appeal by the VA to the United States Supreme Court, the VA has been court ordered to go into their system and clean up the bureaucratic mess that leaves so many veterans looking for assistance empty-handed.

The impact of this decision cannot be understated. For decades, the VA has governed itself when dealing with how best to assist veterans get the benefits they earned. They, like all federal agencies, have internal checks to analyze the performance of the department and come up with ways to improve it.

However, the Ninth Circuit pointed out that, despite these internal measures, little was done to improve the complex maze veterans have to face when looking for benefits and care. The court pointed to two internal documents which directly discussed ways of fixing the problem, a Mental Health Strategic Plan introduced in 2004 and a memorandum written by the Deputy Under Secretary for Health Operations and Management William Feely. Both of these documents were largely ignored, according to a 2007 internal review by the VA’s Office of Inspector General.

The most startling facts come from the VA’s efforts, or lack thereof, of helping veterans who are at risk of suicide. According to the evidence presented at trial, eighteen veterans of our nation's armed forces commit suicide every day. Of those, roughly one quarter are enrolled with the VA health care system. Further, among all veterans enrolled in the VA system, an additional 1,000 attempt suicide each month.

The evidence also showed that an email was sent by Dr. Ira Katz, a VA deputy chief, to high-ranking VA officials notifying them about the high suicide rates among veterans in the VA, and their desire to keep the information quiet. The email, dated February 13th, 2008 reads: “Shhh! Our suicide prevention coordinators are identifying about 1,000 suicide attempts per month among the veterans we see in our medical facilities. Is this something we should (carefully) address ourselves in some sort of release before someone stumbles on it?”

While the facts are stunning, what is even more interesting is the court’s willingness to accept the veterans' argument. For decades, the VA has survived challenges regarding its health care and benefits system, successfully claiming that they were an agency that had an internal form of review that is designed and equipped to handle such problems without judicial intervention.

Now, with the court ruling that Veterans were “deprived of life, liberty and property without due process of law” in violation of the Fifth Amendment, the VA will be required to go line-by-line with every problem that they have in giving veterans timely assistance and address them effectively. All that’s left is to wait and see whether the VA appeals the case to the Supreme Court, a likely scenario given the court’s uneasiness in recent decades with the idea of judicial intervention into agency action and behavior.

Nevertheless, this is a historic occasion for veterans across America, particularly those just returning home from combat. The stories of VA neglect and malpractice have been passed on from generation to generation the same way that stories from the combat theatre are. Now it seems the VA will finally be forced to face the music, and bring real change to their treatment of veterans.