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Thursday, September 27, 2007

Government Moves to Dismiss Class Action Lawsuit Against Veterans Administration

Latest updates on this and related VA/Army lawsuits posted in "As Second Legal Attempt Fails to Force VA Hand on Disability Claims Processing, Army Sued Over Discharged Veteran PTSD Disability Ratings." -- Ilona Meagher, 12/17/08

On Tuesday, the government moved to dismiss "in its entirety" a class action lawsuit filed against the VA by veterans groups. Details from a Veterans for Common Sense/Veterans United for Truth press release:

Plaintiff veterans groups vowed to continue their fight for timely medical treatment and compensation for wounded veterans...The veterans class action lawsuit...seeks to force the VA to follow the law and provide timely medical care and disability benefits for veterans suffering from post-traumatic stress disorder (“PTSD”).

Ignoring the long litany of charges about the defects in the VA system and statutes and abuses of veterans, the government argues that all claims by anyone about the treatment of our veterans must be “channeled” through that same system, however flawed. Defendants belittle the Complaint as merely raising “frustrations with political processes,” and urge that the problems described therein can only be addressed to “representative branches of government.”

Paul Sullivan, Director of VCS, commented that “The VA ought to be ashamed. Veterans deserve their day in Court. Every day the VA fights our lawsuit means another day that our wounded veterans go without medical care and disability payments.”

Click on 'Article Link' below tags for more...


Bob Handy, Chairman of VUFT, stated that “What the VA is essentially saying is that the VA could decide to put all veterans claims on ice for ten years and then just flip a coin, and that there would be nothing a veteran could do about it. This continues its shameful attacks on veterans, reinforcing the view held by many that the government considers veterans to be second class citizens. Every veteran and every citizen in our country should be appalled by this betrayal. We will never give up our fight for justice for the defenders of our liberty.”

The VA also argues to the Court that the veterans groups bringing the case (VCS and VUFT), which it labels as mere “advocacy” groups, lack “standing” to raise claims on behalf of their members (i.e. veterans), and that veterans do not have the right to sue as a group, but rather, each veteran must file separately.

As to the government’s failure to provide health care to returning veterans, the government argues that its obligations to veterans are not mandatory, i.e., it can provide as little or as much health care as it desires. VCS and VUFT are sure that this is not what the military recruiters tell prospective soldiers.

“Just last week, the [VA's Inspector General] caught the VA lying to Congress about how much time it takes for a wounded veteran to see a VA doctor. More than 200,000 veterans are homeless in America, and over 600,000 veterans are still waiting in line for the VA to decide their claims. And now the VA says that veterans must take their complaints to Congress, when it is the VA, not Congress that is the problem,” Sullivan added.

The veterans groups are represented by Gordon Erspamer from Morrison & Foerster, and Sid Wolinsky from Disability Rights Advocates.

Lawsuit details:

Many veterans who have fought in Iraq and/or Afghanistan are not being given the disability compensation, medical services and care they need. A much higher percentage of these veterans suffer with Post Traumatic Stress Disorder ("PTSD") than veterans of any previous war, due to the multiple tours many are serving, the unrelenting vigilance required by the circumstances, the greater prevalence of brain injuries caused by the types of weaponry in use, among other reasons.

In spite of this, the Department of Veterans' Affairs ("DVA") is failing to provide adequate and timely benefits and medical care. This federal lawsuit, on behalf of veterans with pending claims based upon PTSD, regardless of the conflict in which they served, is for declaratory and injunctive relief, based primarily on the due process clause of the Constitution. We will focus on the following issues:

* The widespread breakdown of the DVA's adjudication and health care systems for veterans experiencing PTSD. For example, the application process is too complicated; even veterans with "successful" claims are given ratings that are too low; veterans who are rated as disabled continue to be denied appropriate medical care and ongoing support;

* The prolonged administrative delays in processing PTSD claims, at both the regional office and appellate levels. Applications are often bounced up and down through a complicated appeals process. We estimate that the average time for a claim to go through the entire appeals process, from the Regional Office to a petition for certiorari to the Supreme Court, is between twelve and fifteen years;

* A variety of statutory and regulatory impediments to a veteran's ability to collect PTSD compensation. These include the inability to obtain discovery, the absence of subpoena power for documents and witnesses, and the inability to hire a lawyer to help out at the regional office level, among other impediments; and

* A pattern and practice of internal DVA abuses and improper rules. These are difficult to detect or prove without discovery.

You are invited to familiarize yourselves with these issues by visiting our Resources, to fill out and submit the Veteran Information Intake Form, to read the pivotal Court-filed Documents in the case and to read relevant News Articles.

[UPDATE Sept 29, 2007]: Received the following details via email from Melissa Kasnitz, Disability Rights Advocates managing attorney working on this case:

The VA, represented by the U.S. Department of Justice, has filed a motion to dismiss the entire case, and claimed that veterans have no recourse in the courts for any of the problems we identified.

They also specifically argue that VA is not obligated to provide 2 years (or any) healthcare for veterans, because the relevant statute has a limitation based on appropriations. The short version is that they are arguing that it doesn't matter that the system is broken, and the courts can't make them fix it.

Of course we will be opposing the motion, which will be heard on November 2 by the judge in San Francisco. ... [The] DOJ is arguing on behalf of VA that there really is no obligation to provide any true support for veterans.

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