Vet Groups to Appeal Judge's Decision Over VA's Treatment of PTSD Cases
By Jason Leopold,
A federal Judge has ruled that he lacks the legal authority to force the Department of Veterans Affairs to immediately
treat war veterans suffering from post-traumatic stress disorder (PTSD) and could not order the VA to overhaul its
internal systems that handle benefits claims and medical services for war veterans.
Two veterans advocacy groups, Veterans for Common Sense (VCS) and Veterans United for Truth, filed a lawsuit seeking
class-action status against the VA last year claiming a systematic breakdown at the agency had led to an epidemic of
suicides among war veterans.
The lawsuit claimed that some war veterans were turned away from VA hospitals after they sought care for PTSD and later
committed suicide. PTSD is a psychiatric disorder that can develop in a person who witnesses, or is confronted with, a
traumatic event. Mental health experts have described PTSD as an event of overwhelming magnitude in which a victim's
nervous system is afflicted with intense fear, helplessness and horror. The victim shuts down only to re-experience the
traumatic event over and over again. Studies have shown that PTSD is the most prevalent mental disorder arising from
combat.
Moreover, the complaint alleged, that a massive backlog of benefits claims had led to serious financial hardships among
hundreds of thousands of veterans.
Those claims were borne to some extent by evidence that surfaced during the course of a three-week trial earlier this
year.
Additionally, the lawsuit exposed the extent to which the VA went to conceal that information from the public. The
federal lawsuit resulted in congressional hearings about the issue and led members of Congress to call for the
resignation of several top VA officials.
In an 82-page ruling issued on June 25, U.S. District Court Judge Samuel Conti said that while it is “clear to the
court” that “the VA may not be meeting all of the needs of the nation’s veterans...the court cannot find systemic
violations system-wide that would compel district court intervention.”
Conti wrote that the appropriate parties to address the matter are “Congress, the Secretary of the Department of
Veterans Affairs, the adjudication system within the VA, and the Federal Circuit.”
“The remedies sought by Plaintiffs are beyond the power of this Court and would call for a complete overhaul of the VA
system, something clearly outside of this Court's jurisdiction,” Conti wrote in his ruling. "VCS plans to appeal the
Court’s decision primarily on the grounds that the Judicial Branch must enforce the laws of the Legislative Branch
ignored by the Executive Branch."
“The remedies to the problems, deficiencies, delays and inadequacies complained of are not within the jurisdiction of
this Court. Congress has bestowed district courts with limited jurisdiction. Congress has specifically precluded
district courts from reviewing veterans' benefits decisions and has entrusted decisions regarding veterans' medical care
to the discretion of the VA Secretary. The broad injunctive relief that Plaintiffs request is outside the scope of this
Court's jurisdiction,” he added.
Paul Sullivan, the executive director of Washington, D.C.-based Veterans for Common Sense, said his organization and
Veterans United for Truth would immediately appeal the ruling.
“This ruling will only cause us to redouble our efforts and our pursuit of justice for our nation’s veterans,” Sullivan
said. “We will not rest until our job is finished.”
Gordon Erspramer, the lead attorney representing the veterans advocacy groups, said if the decision is upheld on appeal
it “would suggest that veterans have no enforceable rights in America, and the Constitution does not apply to veterans.”
“For all Americans, the implications of this decision are profoundly disturbing,” Erspamer said.
Sullivan said that as of June 2008, the VA has diagnosed 75,000 Iraq and Afghanistan war veterans with PTSD, but the
agency has only been providing disability benefits covering the diagnosis to 37,000 veterans.
Early warnings ignored, Congress Slow to Act
Prior to the U.S. Invasion of Iraq in March 2003, the VA issued a report to Pentagon and White House officials saying
that it expected that the number of U.S. troops who would suffer from PTSD would reach a maximum of about 8,000.
Sullivan, the executive director of Veterans for Common Sense, told lawmakers before the U.S. invasion of Iraq that
those estimates were extremely low. He continued to sound early warning alarms about the extent of PTSD cases and the
likelihood of veteran suicides during numerous appearances before Congress over the years.
“The scope of PTSD in the long term is enormous and must be taken seriously. When all of our 1.6 million service members
eventually return home from Iraq and Afghanistan, based on the current rate of 20 percent, VA may face up 320,000 total
new veterans diagnosed with PTSD,” Sullivan told a congressional committee in July 2007. If America fails to act now and
overhaul the broken DoD and VA disability systems, there may a social catastrophe among many of our returning Iraq and
Afghanistan war veterans. That is why VCS reluctantly filed suit against VA in Federal Court . . . Time is running out.”
Sullivan has urged Congress to enact legislation to overhaul the VA.
“Congress should legislate a presumption of service connection for veterans diagnosed [with] PTSD who deployed to a war
zone after 9/11,” Sullivan told lawmakers last year. “A presumption makes it easier for dedicated and hard-working VA
employees to process veterans’ claims. This results in faster medical treatment and benefits for our veterans.”
Yet despite Sullivan’s dire predictions and calls for legislative action the issue has not been given priority treatment
by lawmakers. Instead, Congress has continued to fund the war in Iraq.
VA’s Backlog
Meanwhile, a backlog of veterans’ benefits claims continues to pile up at the VA.
The VA said it has hired more than 3,000 mental healthcare professionals over the past two years to deal with the
increasing number of PTSD cases, but the problems persist.
In opening statements in the federal court case, Richard Lepley, a Justice Department attorney, defended the VA, calling
its network of hospitals a “world-class healthcare system.”
But Erspamer, the lead attorney representing the two veterans groups, said the VA has arbitrarily denied coverage to
thousands of vets, that it takes nearly a year to decide whether it will provide coverage to veterans suffering from
PTSD, and takes as long as four years to address veterans appeals cases.
“Seeking help from the Department of Veterans’ Affairs … involves a two-track system,” according to the plaintiff’s
trial brief. “A veteran will go to the Veterans’ Health Administration for diagnosis and medical care; and a veteran
goes to the Veterans’ Benefits Administration to apply for service-connection and disability compensation.
“VA is failing these veterans as they move along both of these parallel tracks. They are not receiving the healthcare to
which they are entitled (and where they do receive it, it is unreasonably delayed) and they are not able to get timely
compensation for their disabilities, which means that they have no safety net.
“These two problems combine to create a perfect storm for PTSD veterans: they receive no treatment, so their symptoms
get worse; and they receive no compensation, so they cannot go elsewhere for treatment. The failings of these two
separate but interrelated systems are what this action seeks to address.”
The lawsuit alleged that numerous VA practices stemming from a 1998 law violate the constitutional and statutory rights
of veterans suffering from PTSD by denying veterans mandated medical care.
Justice Department attorneys had argued in court papers filed in March that Iraq and Afghanistan veterans were not
“entitled” to the five years of free healthcare upon their return from combat as mandated by Congress in the “Dignity
for Wounded Warriors Act.”
Rather, the VA argued, medical treatment for the war veterans was discretionary based on the level of funding available
in the VA’s budget.
Explosive Emails
Two weeks before Conti issued his ruling, he hauled Justice Department attorneys into court to explain why a crucial
email written by a VA official was not turned over to the plaintiffs.
The March 20 email was written by Norma Perez, a psychologist and the coordinator of a post-traumatic stress disorder
clinical team in Temple, Texas.
“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’s email, titled “Suggestion,” says. “We really don’t or have time to do the
extensive testing that should be done to determine PTSD.”
Other internal VA emails obtained by the veterans groups during the discovery phase of the trial also revealed that
senior Veterans Health Administration officials covered up the rate of suicides among war veterans.
On Feb. 13, 2008, Ira Katz, the VA’s mental health director, and Ev Chasen, the agency’s chief communications director,
exchanged e-mails discussing P.R. strategy for handling this troubling news.
The exchange came in the context of how to handle inquiries from CBS News, which was reporting on the surge of suicides
among U.S. veterans – reaching an average of 18 per day – with part of that rise attributed to soldiers returning from
the wars in Iraq and Afghanistan.
In an e-mail headlined “Not for the CBS News Interview Request,” Katz notified Chasen that the VA had identified some
1,000 suicide attempts per month among war veterans treated by the VA.
“Shh!” Katz wrote to Chasen. “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?”
Chasen responded to Katz with suggestions about how to avoid too much negative attention to the data.
“Is the fact that we’re stopping [suicides] good news, or is the sheer number bad news? And is this more than we’ve ever
seen before?” Chasen wrote to Katz, adding:
“It might be something we drop into a general release about our suicide prevention efforts, which (as you know far
better than I) prominently include training employees to recognize the warning signs of suicide.”
In testimony to the House Veterans’ Affairs Committee on Dec. 12, 2007 – just two months before the e-mail exchange –
Katz had stressed the VA’s successes in treating mental health problems and preventing suicides.
He also disputed that veterans from Iraq and Afghanistan face any special risk of suicide.
“VA’s latest data do not demonstrate an increased risk of suicide among [Afghan and Iraqi theatre] veterans compared to
the age and gender matched American population as a whole,” Katz said.
Three days after the testimony, on Dec. 15, Katz painted a grimmer picture in an e-mail to Brig. Gen. Michael J.
Kussman, the Veteran Health Administration’s undersecretary for health.
Katz’s e-mail said that from the total population of U.S. veterans from all wars, an average of 18 vets commit suicide
each day. Katz said the data, which the VA obtained from the Center for Disease Control, showed that 20 percent of
suicides in the United States are identified as war veterans.
“VA’s own data demonstrate 4-5 suicides per day among those who receive care from us,” Katz wrote.
On March 20, 2008, CBS News reported that it had obtained an internal VA study showing that 1,784 vets who received VA
services still committed suicide in 2005, an increase from 1,403 such suicides in 2001.
Underscoring just how under-prepared the VA was for the number of PTSD cases that would emerge from the Iraq and
Afghanistan wars, documents released to support the veterans’ lawsuit show that prior to the U.S. invasion of Iraq the
VA believed it would likely see a maximum of 8,000 cases where veterans showed signs of PTSD.
PTSD Epidemic
In April, the RAND Corporation released a study that said about 300,000 U.S. troops sent to combat in Iraq and
Afghanistan are suffering from major depression or PTSD, and 320,000 received traumatic brain injuries.
Since October 2001, about 1.6 million U.S. troops have deployed to the wars in Iraq and Afghanistan. Many soldiers have
completed more than two tours of duty meaning they are exposed to prolonged periods of combat-related stress or
traumatic events.
“There is a major health crisis facing those men and women who have served our nation in Iraq and Afghanistan,” said
Terri Tanielian, a researcher at RAND who worked on the study.
“Unless they receive appropriate and effective care for these mental health conditions, there will be long-term
consequences for them and for the nation. Unfortunately, we found there are many barriers preventing them from getting
the high-quality treatment they need.”
Soldier’s suicide warnings ignored
Chris Scheuerman, a retired Special Forces masters sergeant, testified before a congressional committee in March and
told lawmakers of an urgent need for mental health reform in the military.
Scheuerman said his son, Pfc. Jason Scheuerman, went to see an Army psychologist because he had been suicidal.
The Army psychologist wrote up a report saying Jason Scheuerman “was capable of (faking) mental illness in order to
manipulate his command,” according to documents the soldier's father turned over to Congress.
“Jason desperately needed a second opinion after his encounter with the Army psychologist,” Chris Scheuerman testified
in mid-March before the Armed Services Committee’s Military Personnel Subcommittee.
“The Army did offer him that option, but at his own expense. How is a PFC (private first class) in the middle of Iraq
supposed to get to a civilian mental health care provider at his own expense?” he said. “I believe a soldier should be
afforded the opportunity to a second opinion via teleconference with a civilian mental health care provider of their own
choice.”
Jason Scheuerman shot himself with a rifle on July 30, 2005. The 20-year-old’s suicide note was nailed to the closet in
his barracks. It said, “Maybe now I can get some peace.”
Dr. Arthur Blank, a renowned expert on PTSD who has worked closely with the VA, testified during the federal court
hearing in San Francisco last month that multiple deployments are largely responsible for an increase in veterans
suicides.
"I think it's because of multiple deployments, which means one is exposed to trauma over and over again," Blank
testified.
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Jason Leopold launched a new online investigative news magazine, The Public Record.