VCS v. Nicholson: Trial notes problems but fails plaintiffs

From Army Times:

June 27, 2008 - A judge determined Wednesday that he does not have the jurisdiction to change the way the Veterans Affairs Department cares for returning service members in a lawsuit Veterans for Common Sense filed against VA Secretary James Peake.

"The grievances are misdirected," Judge Samuel Conti wrote in his decision for the U.S. District Court, Northern District of California. "The remedies to the problems, deficiencies, delays and inadequacies complained of are not within the jurisdiction of this court."

But though he found for the defendants, the judge laid out in an 82-page decision many problems he identified within VA from three weeks of testimony. Veterans for Common Sense complained that VA needs better oversight to ensure programs are in place and well-run, and that delays and gaps in mental-health care have led to problems for Iraq and Afghanistan veterans, including lost jobs, ruined relationships, homelessness, accidental overdoses in VA facilities and suicide while under VA care.

Conti said the plaintiffs "have demonstrated that their members have suffered injuries in fact."

"Given the dire consequences many of these veterans face without timely receipt of benefits or prompt treatment for medical conditions, especially depression and [post-traumatic stress disorder], these injuries are anything but conjectural or hypothetical," Conti wrote. As VA concedes, he wrote, "delays in health care, especially for mental health issues, and delays in receipt of disability benefits, which are often the primary or sole source of income for a veteran, can lead to exactly the type of injuries complained of" by Veterans for Common Sense.

In fact, he said, the actions sought by Veterans for Common Sense, including a time limit on how long an appeal can take, would likely improve the situation.

"This issue ... is whether this and other relief sought by [Veterans for Common Sense] are within the power of the court to grant," Conti wrote. "The Court finds that [Veterans for Common Sense's] individual members would have standing to sue."

The trial brought to light an e-mail showing 1,000 veterans a month attempt suicide while under VA care — written by VA's top mental health doctor with the subject line, "Shh!" It caused a VA employee to forward an e-mail sent to mental health staff at a Temple, Texas, VA facility requesting that mental health workers diagnose adjustment disorder before PTSD because they didn't have the resources to deal with PTSD. And it showed that delays in medical appointments, which VA claimed were 30 days, were actually much longer.

But Veterans for Common Sense had to prove the problems were systemic — that they affected every veteran. Instead, they showed that many of the problems affected a lot of veterans, but not all of them.

Though Veterans for Common Sense intends to appeal the decision, Paul Sullivan, executive director of the organization, said they "stand willing to work with Congress and VA to resolve the many serious problems the court confirmed."

-"June 27, Lawsuit Update: Judge - VA Care Falls Outside His Authority" by Kelly Kennedy

MORE INFORMATION:

• Case Docket (links to 240 court documents)
• Court decision (posted at VCS)
• CBS News / KPIX TV broadcast a thorough review of the verdict. http://blip.tv/file/1027172
  
• Veterans for Common Sense: http://www.veteransforcommonsense.org/

Recouping Taxes Paid on Disability Severance Pay

A veteran posting as "Dorothy" wrote on the "Non-governmental U.S. Veteran Information" website:

"Many medically discharged vets, including some good friends of mine, don't know they are entitled to get the taxes back if they get a VA rating. The ones who do know they are entitled (like I did) don't know how to go about doing it. If I can spare anyone what I went through trying to figure it out, its worth it."

See for yourself at: IRS publications 17 (Your Federal Income Tax) at page 52, and & IRS publications 525 (Taxable & Non-taxable Income) at page 17 both say that those who receive a lump-sum disability severance payment and are later awarded VA disability benefits can exclude 100% of the severance benefit from income. Unfortunately, neither publication says how and, as an added complication, it can happen that VA disability ratings are awarded after taxes on the lump-sum are already paid.

To help sort it all out, the Presidio of Monterey Staff Judge Advocate put an information paper online. Its three pages of instructions are followed by 4 handy sample letters.

"Dorothy" worked through the process and posted a step-by-step procedure here: http://www.usvetinfo.com/meddischarge.htm

I, personally, have not worked through the process but it looks worth taking advantage of the prior experience of those who have. Read more on USVI: http://www.usvetinfo.com/meddischarge.htm

And thanks for the head's up from the blog Military & Veterans: Politics for the deserving

Why We Fight For Our Warriors

Taking a moment away from some of the drier material about laws, lawmaking and lawsuits, let us recall why we must fight for our uniformed family and for their families. An article are Politico today tells the story of Iraq and Afghanistan Veterans of America's Patrick Campbell:

"On the eve of last month’s Senate vote on Sen. Jim Webb’s GI Bill, Patrick Campbell clicked “send” on one last lobbying e-mail to staffers. Then he broke down and cried.

Campbell, the legislative director for Iraq and Afghanistan Veterans of America, had started his message by laying out all of the latest developments on Webb’s bill.

In the final paragraphs, the Iraq war veteran shared the news that was foremost in his mind, news that he hadn’t shared with anyone outside his unit.

“Yesterday,” he wrote, “one of my buddies from Iraq committed suicide.”

It should have been a heady week for Campbell, a week in which the former staffer for Sen. Barbara Boxer (Calif.) and other Democrats shared a rally stage with House Speaker Nancy Pelosi (D-­Calif.), saw the Senate vote overwhelmingly in favor of Webb’s bill and graduated from law school at Catholic University.

But Campbell and the other soldiers in his unit had recently received notice that they’d be headed back to Iraq early next year...."

...Continued on Politico at http://www.politico.com/news/stories/0608/11315.html

And a shout-out to http://www.iava.org. I'll get back to the legal stuff tomorrow.

Idaho Legal Assistance to Military Personnel (LAMP)

Military law (defined as "procedures for military discipline, what is or what is not a lawful command, and obligations for service personnel") is one area in which some lawyers on the Idaho State Bar Lawyer Referral Service have agreed to provide an initial half-hour office consultation for no more than $35.00.
The servicemember can search on the website for a lawyer as follows:

• Go to the Online Lawyer Referral Service (LRS) page, and click on the "Military Law" link
• The website gives you a submenuwhere you choose from several areas of law: Family Military, Grievances, Military Benefits, Veteran’s Benefits. Click on one.
• This directs you to a list of geographic locations, e,g, Boise, Coeur d'Alene, Dalton Gardens. (NOTE: the list is NOT the same for each area of law.) Click on one.
• The website gives you a list of the lawyers from the Idaho State Bar Online Lawyer Referral Service who meet the area of law and city you chose.

This self-service site could be very useful both to servicemembers seeking help, and to lawyers willing to give quick help, without committing further.

---

In addition, active duty service members may wish to check the Armed Forces Legal Assistance's nice online database to "locate active duty legal activities offering general legal services within the continental United States". A query for the state of Idaho is here

GI Bill Compromise Today!

From GI Bill 2008 (a project of Iraq and Afghanistan Veterans of America):

"After overwhelming bipartisan votes for a new GI Bill in the House and Senate, the White House has reached a compromise with House leadership to pass a new GI bill, modeled after Rep. Mitchell and Rep. Brown-Waite’s H.R. 5740. This WWII style GI bill will renew the social contract with our men and women in uniform and their families. This new GI Bill will not only fully fund the cost of an education, it will also allow servicemembers who stay in the military the opportunity to transfer their education benefits to spouses and their children.

The bipartisan agreement reached by the House Majority and Minority Leaders and endorsed by the White House is just one more shining example of the broad bipartisan support for this new GI Bill.

The best news is that the basic benefit structure of HR 5740 is still completely intact; the only substantive changes involve transferability. The White House’s included proposal for a permanent transferability program breaks down like this:

• Six years of service, coupled with an additional service agreement of at least four years grants up to 36 months transferability. This 10-year commitment is similar to what our transferability amendment would have required for full 36-month transferability.
• Spouses would be eligible to receive transferred benefits after the service member has reached six years.
• To transfer to children, the service member would need to serve 10 years before transferring.
• The Secretaries of Defense and Veterans Affairs may prescribe regulations changing the years of service required.
• There are no reporting requirements to Congress as our pilot program amendment had required.
• They have included language to create similar transferability programs in the three existing GI educational benefit programs as well: Montgomery GI Bill (Ch. 30), Montgomery GI Bill-Select Reserve (1606), and the Reserve Educational Assistance Program (1607).
• This transferability program has apparently been scored at $10 billion over 10 years, bringing the cost of the total package to $62 billion.
• There is no offset for the GI bill, tax or otherwise.

This is a big victory for veterans and their families. We hope to see an overwhelming show of bipartisan Congressional support when this bill comes up for a vote later today.

Thank you from Senator Chuck Hagel

IAVA received the following letter from Nebraska Senator Chuck Hagel, one of the original Senate sponsors of the new GI Bill (S.22): Click here to view the original (PDF):

Dear Paul and Friends, As you know, the Webb-Hagel GI Bill passed both Houses of Congress with overwhelming bi-partisan support. The Senate’s vote last week (75-22) was a big win for us. We could not have made this progress without your organization’s strong support. Thank you for your commitment and leadership in ensuring that we get this legislation passed and signed into law. This effort is not over. I will continue to do all I can to see the Webb-Hagel GI Bill become a reality for America’s deserving veterans. Thanks again to you and your colleagues for all your help. We’re getting close! Best wishes.

Learn More at http://www.gibill2008.org/news/

Veterans Affairs Tells Court It Can't Imagine Voter Registration Drives for Its Wounded Veterans and the Homeless

by Steve Rosen of Alternet

An attorney for the Department of Veterans Affairs, which runs hospitals and homeless shelters for veterans, told a federal appeals court Thursday that the VA could not conceive of any circumstance where voter registration drives could occur at its facilities.

"This is an activity that could be seen as harming the appearance of the VA's neutrality," said Owen Martikan, assistant U.S. attorney representing the agency, adding voter registration drives would interfere with patient medical care and also violate the federal Hatch Act, which limits federal employees from participating in political campaign activities.

"If you cure the problem of overt partisanship, you are creating another problem," Martikan said. "Once you let in someone else, you are not being neutral unless you let everyone in."

But Scott Rafferty, a Washington, D.C.-based attorney who has spent several years arguing the VA must allow voter registration drives to help wounded former soldiers register and vote, disagreed.

"Integrating veterans into the communities that they live in is the highest honor we can award veterans," Rafferty told the court.

The issue before a federal appeals court in San Francisco is whether restrictions on voter registration drives at the VA's campus in nearby Menlo Park are unconstitutional.

The case has national significance. The VA has facilities across the country serving thousands of veterans. In 1994, then-President Bill Clinton ordered the VA to help register veterans. However, the VA ceased allowing voter registration drives during the Bush administration.

Several U.S. senators and California's secretary of state, all Democrats, have asked the VA to become a voter registration agency like motor vehicle departments. This spring, the VA issued a new policy saying it would help vets -- who asked for help -- to register and to vote. The VA also said it would allow nonpartisan voter registration drives, but then rescinded the policy on registration drives.

The suit before the federal appeals court is revisiting the question of whether Steve Preminger, chair of the Santa Clara County Democratic Central Committee -- where the Menlo Park facility is located -- has standing to question the constitutionality of the VA's policy.

On Thursday, judges from the three-judge panel asked the VA if there was any circumstance where it could conceive of a nonpartisan voter registration drive. One judge said students at her daughter's high school were given voter registration forms when they are 17-1/2 years old -- and asked why veterans cannot be given the same opportunity?

"It's a different environment than a school," Martikan said. "It means diverting resources from patient care."

Another judge laid out a scenario where anyone who would participate in voter registration efforts would not wear campaign buttons or say what party they belonged to. He asked if the VA would object to a voter registration drive if participants were told "no partisan activities."

That would not satify the VA, Martikan said, saying, the "VA has different interests."

Martikan said that Preminger and an associate came onto the VA campus in a car that had an "impeach Bush" bumper sticker. "They introduced themselves as members of the Democratic Party," he said, adding it was a fiction that registration drive participants could "pretend to be nonpartisan."

After the hearing, Preminger said his attempts to register voters were neither overtly partisan nor disruptive.

"I don't carry myself that way -- not at all," he said.

Preminger said Republican Party volunteers have been able to visit the Menlo Park facility to register voters.

Original article: http://www.alternet.org/democracy/88012

Anti-PTSD Email and Senate Testimony Accepted in VCS v. Nicholson and the anti-PTSD Email

By John Hoctor of the Fog City Journal - June 11, 2008

History was again in the making for two veterans advocacy groups in San Francisco yesterday after a federal judge admitted into evidence an email exposing U.S. Department of Veteran Affairs’ (VA) alleged intent to deny care to veterans returning from Iraq and Afghanistan.

Federal Judge Samuel Conti accepted a March 20 email from Texas-based VA psychologist Norma Perez requiring staffers to downgrade diagnosis of veterans suffering from Post Traumatic Stress Disorder (PTSD).

“Given that we are having more and more compensation-seeking veterans, I’d like to suggest that you refrain from giving a diagnosis of PTSD straight out,” Perez wrote in the email distributed to VA counselors. “We really don’t or have time to do the extensive testing that should be done to determine PTSD.”

The class-action lawsuit filed by Veterans for Common Sense and Veterans United for Truth in May 2007 seeks declaratory and injunctive relief, and challenges the constitutionality of the Veterans Judicial Review Act.

While the trial for the lawsuit ended in April, Conti took the unusual step last week to reopen the case to consider Perez’ email as evidence of alleged VA intent to minimize diagnosis of severe mental disorders to save costs. Conti also allowed as evidence the entire transcript of a June 4 Senate Veterans’ Affairs Committee hearing about the email.

Veterans’ Attorney Heather Moser requested Conti to admit Perez’ email as evidence because it demonstrates the VA is attempting to deny veterans health care for the purpose of avoiding paying billions of dollars in treatment costs.

“Classifying a vet with adjustment disorder instead of PTSD is another way of denying full benefits to our veterans,” Moser stated during yesterday’s hearing.

“We were told that the budgeting has been increased to accommodate and respect our veterans’ service to this country. Time should having nothing to do with providing an accurate diagnosis between Adjustment Disorder and PTSD. There’s a major difference in compensation over a lifetime as it relates to pension administration,” Moser added.

The VA was forced to acknowledge veterans are attempting and committing suicide at alarming rates when a RAND Corporation report released in April reported as many as 1,000 veterans committing suicide per month. These numbers of veteran suicides were unheard of before the Iraq and Afghanistan wars, caused in part by a lack of adequate treatment for PTSD, severe depression, and brain traumas.

The veterans groups are suing for immediate medical help for the “invisible wounds” in light of what has been termed “an epidemic of suicides.”

Moser further claimed there are parallels between Perez’ email and the VA’s lapses in providing accurate determinations for mental health and timely adjudication of claims. Sworn testimony by the veterans groups during the April hearing focused on veterans’ accounts of being mis-diagnosed and wait-listed for their claims to be reviewed.

But Conti fired back at Moser before a crowded gallery of spectators and lawyers: “Please, counselor, don’t waste your time. The next time you present this evidence will be in front of group of three.”

Conti was apparently alluding to a potential appeal of his yet-to-be-ruled-upon opinion. He told those attending the half-hour-long hearing yesterday that he would rule in “due time.”

His admission of the Perez email as evidence, however, is considered a significant victory for the veterans groups.

Justice Department attorney Daniel Bensing suggested that Perez’ email was a “mistake” and didn’t represent VA policy. He said Perez had been disciplined over her poorly worded directive by an otherwise dedicated public servant, and was misconstrued by plaintiffs as an attempt to deny benefits.

Bensing made the same case as the Department of Defense in the Abu Ghraib torture incident, that rather than reflecting policy and gross overall institutional incompetence of the Bush administration, Perez is merely one of “a few bad apples.”

The email, Bensing claimed, “was an honest mistake by a junior staff member.”

“There really is nothing more to this matter,” Bensing added. “We submit that it should have no effect on this case.”

Lead plaintiffs counsel Gordon Espamer contrasted a vastly different view.

“The Katz ’shhh’ memo we entered during the trial in April - the circumvention of the White House’ official email accounts onto private ones by (Karl) Rove - and with the release of the Perez memo, there is a clear pattern presenting itself, and has for some time, that of gross negligence and evisceration of government from within,” Espamer said.

While the veterans are uncertain of their effectiveness with Conti, they may have found a sympathetic ear from the Democratic side of the campaign trail. Senator Barack Obama has weighed in on Perez’ email signaling a challenge to Senator John McCain’s perceived strength on veterans’ issues.

Obama sent a letter to Veterans Affairs Secretary James Peake in May expressing “serious concerns” over the reports and is demanding an investigation. “Simply put, Ms. Perez’s email is outrageous,” Obama wrote. “As you well know, PTSD is the most prevalent mental disorder afflicting our returning veterans.”

The Senate Veterans’ Affairs Committee and the VA inspector general are investigating whether there were broader VA policy motives behind the email. The VA has strenuously denied that cost-cutting is a factor in its treatment decisions.

“One question that was raised repeatedly about this latest email was, ‘Why would a clinician be so concerned about the compensation rolls?’” said Sen. Daniel Akaka (D-Hawaii), who chairs the Senate panel. “As an oversight body, we must know whether the actions of these VA employees point to a systemic indifference to invisible wounds.”

Akaka said last week’s Senate hearing raised many questions about the VA’s standards for diagnosing mental health disorders.

While some might consider Perez a “rogue psychologist” for making her “suggestion,” are there more like her in the VA system? Akaka asked.

Perez for her part claims her email was “poorly-worded.” This calls into question her abilities as a diagnostician, according to Moser and Espamer.

The gravitas of the plaintiffs’ entire case, Moser and Espamer told Conti, centers on whether this situation is the VA norm or an exception. The veterans have collectively presented evidence to Conti that begs the question: “Is this going on at VA facilities around the country?”

The plaintiffs are seeking a firm set of fair guidelines for all VA mental health diagnosticians to follow.

Update, June 13:

Citizens for Responsibility and Ethics in Washington (CREW), which posted Perez’ email on its website, filed a Freedom of Information Act request in May with the VA for documents pertaining to guidance given about PTSD diagnosis. On June 10, CREW received a response from VA Records Management Services Director John Livornese who denied CREW’s request stating, “the subject of your request is a matter that has already reached the public domain and any records on this subject would not reveal anything new.”

VA Benefits Related to Home Ownership

Veterans, their survivors and caretakers may not be aware of the full range of benefits related to home ownership that they have earned by their service.

• The unmarried surviving spouse of a veteran who died on active duty or as the result of a service-connected disability is eligible for the home loan benefit. See Home Loan Guaranty Service Frequently Asked Questions
• Veterans or servicemembers who have specific service-connected disabilities may be entitled to a grant from the Department of Veterans Affairs (VA) for the purpose of constructing an adapted home or modifying an existing home to meet their adaptive needs. See Specially Adapted Housing Program
• See much more at VA Loan Guaranty Web Site

SCRA Guide for Judges ... and Others

The Servicemembers Civil Relief Act is intended to permit servicemembers to devote their entire energy to the service of our nation, instead of worrying about a case civil court while they're away on service. It generally allows for the temporary suspension of judicidal and administration proceedings, under 50 USC 501+.

The ABA has published 18-page guide by Mark Sullivan about the is intended for judges ... which is all the more reason that attorneys, servicemembers and family should read it carefully. You'll want to know what the judges know:

• A Judge's Guide to the Servicemembers Civil Relief Act
• SCRA Text

Veterans Affairs Supportive Housing (VASH) Training

Per National Coalition for Homeless Veterans:

"HUD's webcast from May 8, 2008 "Veterans Affairs Supportive Housing Training" is available online through HUD's website. The webcast was 1 hour 30 minutes long, and you can access it by clicking here.

To view HUD's page on HUD-VASH which includes information on the program, materials for the webcast, and a link to the original Federal Register notice of operating requirements, click here.

Corrections to the original notice in the Federal Register were published on May 19. You can view the notice with corrections here."

CLE: "No Family Left Behind" July 9, 2008

Save The Date! The following event is to orient and educate attorneys seeking to provide pro bono assistence to members of the Washington State National Guard deploying to Iraq in August 2008, and to their families:

Event Title: “No Family Left Behind”

Content: Fundamentals and practice tips on assisting troops, and their families, during and after deployment. SCRA, USERRA, and much more!

Date: Wednesday July 9, 2008, 9 a.m. - 1 p.m.

Location: Washington State Bar Association, 1325 4th Avenue, 6th floor, Seattle. [Directions]

Host: Washington State Bar Association Legal Assistence to Military Personnel (LAMP) Section, in cooperation with Attorneys Assisting Citizen-Soldiers and Families (AACF)

Register Now: : https://pro.wsba.org/forms/cle/Z80709.asp

PTSD Update from Veterans for Common Sense

Veterans for Common Sense posted important PTSD-related information:

"Last week, the Pentagon released a report showing a 50% increase in Post Traumatic Stress Disorder cases in 2007. http://www.veteransforcommonsense.org/articleid/10250

"PTSD can only be treated if it is recognized, and research shows that stigmatizing PTSD reduces the number of veterans seeking care. That's why we became furious when James Peake said that PTSD and TBI are nothing more than a highschool football injury. http://www.veteransforcommonsense.org/articleid/10232

"VCS is disappointed that military insurance is inadequate in meeting mental health care needs. http://www.veteransforcommonsense.org/articleid/10238


We are outraged that sexual assault on female soldiers is not an official cause of PTSD. http://www.veteransforcommonsense.org/articleid/10241

"A VA employee in Jackson, Mississippi, gives hope that reform is on the way when he blows the whistle on a bungled claims processing system. James G. "Bo" Maske states 'improper denials, poor service to veterans,' slows claims processing to a crawl.
http://www.veteransforcommonsense.org/articleid/10260

"Finally, lest we forget the reason we fight this fight, a tragic story illustrates what can go wrong when VA fails to come through with prompt PTSD treatment.
http://www.veteransforcommonsense.org/articleid/10262
"