The Federal Ninth Circuit Court of Appeals Rapped the Veterans Administration for Unconsionable Delays in (a) Caring for Veterans with Post Traumatic Stress Disorder and/or Suicidal Thoughts and (b) Responding to Veterans’ Death and Disability Claims  — Our Self-Indulgent Civilian Culture Treats the Military Like an Admirable but Disposable Class of Indentured Servants

© 2011 Peter Free

 

12 May 2011

 

 

“Come back dead, or don’t come back at all”

 

Any society that guiltlessly assigns a small, generally lower socio-economic, warrior class to do its necessary survival work is not an admirable one.

 

A society that divorces itself from the national defense and then disregards its servant warriors’ medical needs is a contemptible one.

 

Via the mechanism of luxuriant complacence, we have become a contemptible society.

 

Our cowardly hypocrisy is made worse by the fact that, once veterans come home, we praise them, but too often ignore, or long delay meeting, their medical needs — thereby adding extreme psychological stress to what they have already endured.

 

 

The Ninth Circuit Court of Appeals recently attempted to reverse this trend

 

The situation for veterans has become so bad, that two days ago, the federal Ninth Circuit Court of Appeals felt obligated to step in to attempt to force the federal government and, presumably Congress, to treat our veterans with the care they deserve.

 

In some respects, the decision is an unusual one because it knowingly crosses the line between governmental branches, using debatable legal arguments to do so.  That is how law evolves.

 

Justice Reinhardt’s eloquent majority decision starts out by describing the situation that veterans face.  Reading between the lines it is clear that the court is attempting to call attention to an unconscionable situation:

 

On an average day, eighteen veterans of our nation's armed forces take their own lives. Of those, roughly one quarter are enrolled with the Department of Veterans Affairs ("VA") health care system.

 

 

Among all veterans enrolled in the VA system, an additional 1,000 attempt suicide each month.

 

 

Although the VA is obligated to provide veterans mental health services, many veterans with severe depression or post-traumatic stress disorder ("PTSD") are forced to wait weeks for mental health referrals and are given no opportunity to request or demonstrate their need for expedited care. For those who commit suicide in the interim, care does not come soon enough. . . .

 

 

Veterans who return home from war suffering from psychological maladies are entitled by law to disability benefits to sustain themselves and their families as they regain their health. Yet it takes an average of more than four years for a veteran to fully adjudicate a claim for benefits. During that time many claims are mooted by deaths.

 

 

The delays have worsened in recent years, as the influx of injured troops returning from deployment in Iraq and Afghanistan has placed an unprecedented strain on the VA, and has overwhelmed the system that it employs to provide medical care to veterans and to process their disability benefits claims.

 

 

For veterans and their families, such delays cause unnecessary grief and privation. And for some veterans, most notably those suffering from combat-derived mental illnesses such as PTSD, these delays may make the difference between life and death.

 

 

In this context, two non-profit organizations, Veterans for Common Sense and Veterans United for Truth (collectively "Veterans"), seek injunctive and declaratory relief to remedy the delays in (1) the provision of mental health care and (2) the adjudication of service-connected death and disability compensation claims by the VA.

 

 

Among other issues, Veterans ask us to decide whether these delays violate veterans' due process rights to receive the care and benefits they are guaranteed by statute for harms and injuries sustained while serving our country.

 

 

We conclude that they do.

 

 

Veterans for Common Sense v. Shinseki, No. 08-16728, pages 2-4 (9th Cir., 10 May 2011) (paragraphs split)

 

 

VA idiocies are so extreme that one wonders how anybody of right mind could have come up with them

 

The Ninth Circuit decision is filled with descriptions of Veterans Administration absurdities that will make most sane people cringe.

 

Here are two small samples:

 

Veterans suffering from mental illnesses who are told that they must wait for extended periods of time before receiving treatment have little recourse.

 

A veteran has neither the right nor the opportunity to appeal an administrative decision to place him on a wait list, if that decision is made by a clerical appointment scheduler such as a medical center receptionist.

 

By contrast, a veteran may appeal a doctor or nurse's clinical decision that he must wait for a certain period of time before receiving mental health care.

 

Veterans for Common Sense v. Shinseki, No. 08-16728, page 16 (9th Cir., 10 May 2011) (paragraphs split)

 

Doesn’t that sound backwards to you?  Do the Veterans Administration and Congress suffer from priority dyslexia?

 

Similarly, the majority decision found that the Veterans Administration’s ridiculously complex claims process (i) challenges and overwhelms the capacities of injured veterans, (ii) prohibits legal advice during the initial stages, and (iii) imposes tight timelines that the veteran must abide, but the VA can ignore indefinitely.

 

In other words, VA claims procedures are deliberately and massively biased against disabled, injured, or dead veterans.

 

Doesn’t that also seem opposite to the way it should be?

 

 

What happens next?

 

In regard to veterans’ medical treatment, the Ninth Circuit decision requires the federal district court (which first heard the case) to do the following:

 

On remand, the district court shall conduct hearings in order to determine what additional procedures or other actions would remedy the existing due process violations in three core areas. The district court shall consider what procedural protections are necessary to ensure that:

 

(1) individuals placed on VHA waiting lists for mental health care have the opportunity to appeal the decision in a timely manner and to explain their need for earlier treatment to a qualified individual;

 

(2) individuals determined to be in need of mental health care receive that treatment in a timely manner; and

 

(3) individuals with urgent mental health problems, particularly those at imminent risk of suicide, receive immediate mental health care.

 

Veterans for Common Sense v. Shinseki, No. 08-16728, page 72 (9th Cir., 10 May 2011) (paragraphs split)

 

In regard to the veterans’ delayed compensation claims:

 

 

Again, we remand to the district court with the instruction that it conduct evidentiary hearings in order to determine what procedures would remedy the existing due process violations in the VBA claims adjudication process.

 

 

The hearings shall explore what procedural protections are most appropriate to permit the appeals of veterans to be expedited in the most efficient manner, with a particular emphasis on the procedural protections necessary for veterans suffering the most financial hardship during the adjudication of their claims.

 

 

The district court may consider the need for setting maximum time periods for determinations at various stages of the claims adjudication process and/or the need for a procedure to expedite claims where emergency circumstances are shown to exist.

 

 

Veterans for Common Sense v. Shinseki, No. 08-16728, page 94 (9th Cir., 10 May 2011) (paragraphs split)

 

 

 

Will the Supreme Court be involved?

 

The Supreme Court will likely be the next step, if the Veterans Administration appeals the decision.  Ordinarily a federal agency would appeal, given the Ninth Circuit’s arguable trampling on the dividing line between branches of government.  And ordinarily the Supreme Court would not duck the case, for the same reason.

 

On the other hand, the VA has acted so abominably, the Obama Administration may decide that it would look worse in appealing, than it would in attempting to resolve the real issues confronting veterans.

 

 

The much maligned Ninth Circuit is often an admirable court

 

It frequently shines light on legally irremediable wrongs.

 

At those times, it is up to the rest of us to pick up the ball.

 

 

The moral? — Action, not talk — Fixes, not ideology

 

When we abuse the comparatively small group of people who sacrifice their lives, bodies, and minds on behalf of this nation, we become a soul-less people.

 

If we cannot meet the problems that veterans face, we can no longer call ourselves a respect-worthy people.