Gordon Erspamer, lead counsel for Veterans for Common Sense, speaks at… (Jeff Chiu / Associated Press )
A federal appeals court Tuesday lambasted the Department of Veterans Affairs for failing to care for those suffering post-traumatic stress disorder and ordered a major overhaul of the behemoth agency.
Treatment delays for PTSD and other combat-related mental illnesses are so "egregious" that they violate veterans' constitutional rights and contribute to the despair behind many of the 6,500 suicides among veterans each year, the U.S. 9th Circuit Court of Appeals said in its 2-1 ruling.
Noting that an average of 18 returning service members commit suicide each day, the court directed a district judge in San Francisco to order sweeping reform of the VA's mental healthcare system.
The appeals court took nearly two years to issue its decision, in part because the court attempted to force the government to negotiate with the two veterans' groups that sued over mental health care and benefits that had been delayed or denied.
Citing the court's inability to order the government "to work faster," Chief Judge Alex Kozinski had urged lawyers for the VA and the veterans groups to use the court's mediation services to work out a plan for meeting the wounded veterans' needs. The talks deadlocked and no settlement was reached.
"There comes a time when the political branches have so completely and chronically failed to respect the People's constitutional rights that the courts must be willing to enforce them. We have reached that unfortunate point with respect to veterans who are suffering from the hidden, or not hidden, wounds of war," said the ruling written by Judge Stephen Reinhardt and joined by Senior Judge Procter Hug Jr., both appointees of President Carter.
"The VA's unchecked incompetence has gone on long enough; no more veterans should be compelled to agonize or perish while the government fails to perform its obligations," the ruling said.
Kozinski dissented, saying that "much as the VA's failure to meet the needs of veterans with PTSD might shock and outrage us, we may not step in and boss it around."
He predicted that the majority's directive would only prolong litigation and complicate the agency's efforts to improve services.
"We would have preferred Congress or the President to have remedied the VA's egregious problems without our intervention when evidence of the department's harmful shortcomings and its failure to properly address the needs of our veterans first came to light years ago," the majority said in heeding the chief judge's concerns.
Veterans for Common Sense and Veterans United for Truth sued the VA four years ago, alleging systemic failures in the government's processing of disability claims and appeals of denied coverage. U.S. District Judge Samuel Conti denied the groups' claims on procedural grounds following a seven-day trial in 2008. The judge said he lacked the authority to order the VA to implement the Mental Health Strategic Plan it drafted in 2004 to overhaul its care system within five years.
Gordon Erspamer, the San Francisco attorney who represented the veterans groups pro bono, said he provided Conti three years ago with remedial plans for the VA to improve services to veterans, proposing firm deadlines for dealing with treatment requests and benefit claims. He said he was concerned, though, that the government would continue to appeal the case, further delaying the needed reforms.
"We're not dealing with the rights of convicted criminals here, or the rights of foreign combatants. We're dealing with our people, our veterans. It's a tough issue to be so inflexible on," he said of the federal government's resistance to direction from the courts.
Charles S. Miller, a spokesman for the Justice Department whose lawyers argued the case in defense of the VA, said the department had no immediate comment except to say that it was reviewing the 9th Circuit ruling.
Treatment of war wounds has been a legal guarantee to soldiers since Abraham Lincoln was president, and the law was enhanced in 1998 to promise free care for "any medical condition, even if the condition is not attributable to military service."
Tuesday's ruling noted that there are 25 million veterans in the United States, including 1.6 million who served in Iraq or Afghanistan over the past decade.
"PTSD is a leading mental health disorder diagnosis for those veterans," the appeals panel said, citing a Rand Institute study in 2008 estimating that 300,000 returning war veterans currently suffer from PTSD or major depression.
The VA is obliged to provide a mental health assessment within 30 days for any veteran requesting help, but many applications languish for months or years, and tens of thousands of those deemed in need of care are relegated to waiting lists because of chronic shortages, the judges noted.
The ruling also cited a 2007 report by the Office of the Inspector General that there were no suicide prevention officers at any of the VA's 800 community-based outpatient clinics, where most veterans receive their medical care.