VCS and VUTS File Appeal

From Veterans for Common Sense:

Monday Jul 28, 2008 - As promised, the advocacy group Veterans for Common Sense has filed an appeal in a case in which it accuses the Veterans Affairs Department of putting veterans at risk for suicide and mental health issues through shortfalls in care.

In June, Judge Samuel Conti of the 9th Circuit Court of Appeals in California ruled that the case was out of his jurisdiction because Veterans for Common Sense could not prove that the problems cited — delays in benefits, lost records, long waits for doctors’ appointments, not enough oversight and veterans turned away from hospitals with suicidal thoughts — applied to every veteran, and were therefore not systemic.

However, Conti said in his ruling that those problems need to be tended to, and that individual veterans could sue VA. He said the power to change the system ultimately rests with Congress and VA.

But Veterans for Common Sense, in conjunction with Veterans United for Truth, appealed because they believe the courts do have jurisdiction and can force change. They have requested an expedited hearing, citing new statistics that show a veterans’ suicide hotline receives 250 calls a day from people in distress.

The case brought to light several problems within the system, including an e-mail from a woman who oversees mental health workers at a Temple, Texas, VA facility in which she said her center did not have the resources necessary to diagnose veterans with post-traumatic stress disorder and advised them instead to diagnose “adjustment disorder” — a short-term diagnosis no longer applicable to veterans who have had symptoms for more than six months.

The case also disclosed an e-mail that showed more than 1,000 veterans in VA’s care attempt suicide every month.

“For these reasons, plaintiffs believe they should continue to fight, that their cause is valid, and that Judge Conti was incorrect in holding that the courts are without power to grant veterans a remedy,” attorneys for Veterans for Common Sense said in a statement.

• Original: http://www.veteransforcommonsense.org/articleid/10770
• More posts on this case: http://lawyersforwarriors.blogspot.com/search/label/VCS%20v.%20Nicholson

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/

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.”

VCS v. Nicholson and the anti-PTSD Email

After the close of evidence in VCS v. Nicholson, an email came to light concerning instructions to "refrain from giving a diagnosis of PTSD" (March 20, 2008 email from Veterans Health Administration PTSD Program Coordinator Norma Perez). The email goes on "We don't have time to do the extensive testing that should be done to determine PTSD".

Plaintiffs have requested that this email be considered in determining factual issues, such as whether VA systematically underdiagnoses PTSD and lacks resources to do its job.

MORE INFORMATION:

• Plaintiff's Letter (5/28/2008)
• Plaintiff's Proposed Findings of Fact (5/9/2008)
• Defendant's Proposed Findings of Fact (5/19/2008)
• Case Docket

Closing Arguments in Veterans for Common Sense v. Nicholson

You will recall that Veterans for Common Sense v. Nicholson is a class-action in which veterans claiming that medical care was denied or delayed are suing for injunctive relief. That is to say, they want action!

Closing arguments have just finished; for a nice summary of the case so far, with links to court documents, see Closing Arguments in Suit on Veterans’ Mental Care by Michele Storms at http://trialadnotes.blogspot.com

Notice how easily it is to access the various filings and orders here: http://news.justia.com/cases/featured/california/candce/3:2007cv03758/194177/

(And note also that at least one the filings refers to Veterans for Common Sense v. Peake, rather than Nicholson. This can be confusing.)

VA Lawsuit Trial Starts

Veterans For Common Sense et al. v. Nicholson, Case No. C 07 3758, U.S.D.C. (N.D. Cal. 2007)" goes to trial this week.

You may access the primary court-filed documents at http://www.veteransptsdclassaction.org/cfd.html (no password or registration required) or, if you have a PACER account, you can get the complete docket & documents at the United States District Court for the Northern District of California at http://www.cand.uscourts.gov.

This class-action lawsuit concerns whether the U.S. Department of Veterans Affairs isn't doing enough to provide adequate medical care for Americans who have served in the armed forces.

Learn more: http://www.veteransptsdclassaction.org/

According to an AP article (Lawsuit: Veterans Affairs has failed to prevent suicides by Paul Elias):

"An average of 18 military veterans kill themselves each day, and five of them are under VA care when they commit suicide, according to a December e-mail between top VA officials that was filed as part of the federal lawsuit.

"That failure to provide care is manifesting itself in an epidemic of suicides," the veterans groups wrote in court papers filed Thursday.

A study released this week by the RAND Corp. estimates that 300,000 U.S. troops — about 20 percent of those deployed — are suffering from depression or post-traumatic stress from serving in Iraq and Afghanistan.

"We find that the VA has simply not devoted enough resources," said Gordon Erspamer, the lawyer representing the veterans groups. "They don't have enough psychiatrists."

The lawsuit also alleges that the VA takes too long to pay disability claims and that its internal appellate process unconstitutionally denies veterans their right to take their complaints to court.

The groups are asking U.S. District Court Judge Samuel Conti, a World War II U.S. Army veteran, to order the VA to drastically overhaul its system. Conti is hearing the trial without a jury.

"What I would like to see from the VA is that they actually treat patients with respect," said Bob Handy, head of the Veterans United for Truth, one of the groups suing the agency.

Handy, 76, who retired from the Navy in 1970, said he founded the veterans group in 2004 after hearing myriad complaints from veterans about their treatment at the VA when he was a member of the Veterans Caucus of the state Democratic Party. The department acknowledges in court papers that it takes on average about 180 days to decide whether to approve a disability claim.

"I would just like to see the VA do the honorable thing," said Handy, who is expected to testify during the weeklong trial.

Justice Department spokeswoman Carrie Nelson declined comment Friday.

But government lawyers have filed court papers arguing that the courts have no authority to tell the VA how to operate and no business wading into the everyday management of a sprawling medical network that includes 153 medical centers nationwide.

The veterans are asking the judge "to administer the programs of the second largest Cabinet-level agency, a task for which Congress and the executive branch are better suited," government lawyers wrote in court papers.

If the judge ordered an overhaul, he would be responsible for such things as employees workloads, hours of operations, facility locations, the number of medical professionals employed, and "even the decision whether to offer individual or group therapy to patients with" post-traumatic stress, the papers said.

The VA also said it is besieged with an unprecedented number of claims, which have grown from 675,000 in 2001 to 838,000 in 2007. The rise is prompted not from the current war, but from veterans growing older, government lawyers said.

"The largest component of these new claims is the aging veteran population of the Vietnam and Cold War eras," the government filing stated. "As they age, older veterans may lose employment-related health care, prompting them to seek VA benefits for the first time."

Government lawyers in their filings defended its average claims processing time as "reasonable," given that it has to prove the veterans disability was incurred during service time. They also noted the VA will spend $3.8 billion for fiscal year 2008 on mental health and announced a policy in June that requires all medical centers to have mental health staff available all the time to provide urgent care. They said that "suicide prevention is a singular priority for the VA.""