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Wednesday, December 17, 2008

As Second Legal Attempt Fails to Force VA Hand on Claims Processing, Army Sued Over Discharged Vet PTSD Disability Ratings

From CNN:

The U.S. Army intentionally denied benefits to soldiers suffering from a widespread stress disorder after they returned from service in Iraq and Afghanistan, a veterans advocacy group charges in a suit filed Wednesday.

The lawsuit [pdf], filed by the National Veterans Legal Services Program, accuses the Army of illegally cutting off benefits to thousands of veterans and their families by refusing to assign a proper disability rating to those veterans after they had been discharged with a diagnosis of post-traumatic stress disorder (PTSD). As a result, the veterans have been denied benefits, including, among other things, lifetime monthly disability payments and free medical care for themselves and their families. ...

All disabled veterans are assigned a disability rating from zero to 100 percent. According to the Legal Services Program, a rating of at least 30 percent is required to qualify for benefits such as monthly disability payments and free health care. Soldiers receiving less than a 30 percent rating are entitled only to a one-time lump sum severance payment after being discharged.

On October 14, the Defense Department ordered the Army to assign at least a 50 percent rating to all soldiers discharged with PTSD in the future. The lawsuit seeks to provide full benefits to all veterans discharged with PTSD in the past six years.

In educational interest, article(s) quoted from extensively.

OEF/OIF vets seeking help from Lawyers Serving Warriors should visit and submit information through the "Request Free Legal Help" button on the left side of the screen.

While one lawsuit is filed, another has been shot down.

Details on the second such challenge pointing to the VA system's inability to efficiently deliver health care services and process its disability claims in a timely fashion [details on the first lawsuit, now awaiting appeal, in extended] from Hope Yen of AP:

A federal judge on Wednesday rejected a bid by veterans groups to force the Veterans Affairs Department to speed up handling of its disability claims, saying it was not the court's role to impose quicker deadlines. Vietnam Veterans of America and Veterans of Modern Warfare, which represent roughly 60,000 military veterans, had filed the lawsuit asking the VA process initial disability claims within 90 days and resolve appeals within 180 days. If the VA failed to do so, the two groups were seeking interim payments of roughly $350 a month.

At a court hearing Wednesday, U.S. District Judge Reggie Walton said he was sympathetic to the plight of disabled veterans, many of whom he acknowledged might face unemployment and homelessness in a tightening economy. But Walton said that setting a blanket rule of 90 days for processing claims was a role for Congress and the VA secretary to decide.

Currently, thousands of veterans endure six-month waits for disability benefits and appeals that take years, despite promises by current VA Secretary James Peake and his predecessor, Jim Nicholson, to reduce delays. More recently, Congress passed legislation that sets up a VA pilot program aimed at speeding the processing of disability claims.

"It has to be appreciated that courts play a limited role," Walton told a courtroom filled with about two dozen veterans and their family members. "I am being asked here in a sense to run the VA and set in place a timeline that Congress has not."

"As much as I as an individual would like to see claims expeditiously concluded, ...I just don't see how I could provide the relief," he added. "If I did, I would be reversed in a heartbeat."

While this lawsuit has been struck down, another private suit has been filed against the VA by the family of a two-tour Iraq veteran who committed suicide in 2006.

Continuing from AP:

Noting that the backlogs have persisted for nearly a decade, [veterans' attorney Robert] Cattanach argued that the VA has no incentive or requirement to improve its practices without a clear deadline. ...But government attorney Ron Wiltsie countered that the VA is working to reduce delays and has made some improvement. In recent months, the VA has added dozens of claims processors and now says it has whittled delays from 178 days to about 163 days. The VA should be allowed to continue its work without micromanagement and blanket judgments from a federal judge who has not reviewed the individual cases, Wiltsie said.

The hearing comes as the VA is scrambling to upgrade government technology systems before new legislation providing for millions of dollars in new GI education benefits takes effect next August. On Saturday, the VA also said it was working to pay back millions of dollars in government benefits to surviving spouses of veterans who — due to computer glitches — were wrongfully denied disability checks during the month of their spouse's death.

On the claims backlog, Kelly Kennedy for Military Times:

Rita Reese, principal deputy assistant VA secretary for management, told Congress in January that the department would increase the number of fulltime case workers from 14,857 to 15,570, with a goal of reducing the disability claims backlog to 298,000 by the end of fiscal 2009, which would be a drop of 24 percent.

Following the news of the lawsuit's rejection, some good news: VMW executive director David Overton was able to meet privately with a Obama's transition team; by his account, the meeting buoyed him.

Now, some background on the earlier class action vs. the VA:

Back in June 2007, the first class action lawsuit to directly challenge the U.S. Department of Veterans Affairs' handling of disability claims processing (especially as it pertained to those coping with PTSD) was filed. The lawsuit, pointing to the VA's 600,000+ backlog of claims and long processing times that disabled veterans said prevented them from receiving life-saving mental health care services they earned, aimed to force the VA to do a better job.

At first, the government attempted to dismiss the suit in its entirety, arguing that vets have no legal right to expect specific types of medical care. The lawsuit, however, was allowed to move forward and, as the case proceeded through 2007, became the essential catalyst that moved media organizations to use their power to gather long-needed data from the government.

FOIA requests and investigations by CBS news revealed the first real numbers regarding OEF/OIF (and previous) veterans' suicides. In June 2008, controversial emails by VA officials caused an uproar, leading the judge -- who had heard closing arguments in April 2008 -- to re-open the case briefly in order to accept them into evidence.

In the end, the judged ruled [pdf] in favor of the VA.

June 2008, Pia Malbran of CBS News:

The non-profit groups Veterans for Common Sense and Veterans for Truth sued the VA claiming the agency, charged with taking care of US military veterans, is not properly processing health claims and not fully addressing the mental health needs of vets especially when it comes to suicide. The lawsuit, filed in San Francisco federal court as a pro bono case led by the law firm Morrison & Forester, did not ask for any money but rather that a judge step in and force the VA to better fulfill its federal responsibilities.

U.S. District Judge Samuel Conti allowed the case to go to trial and held almost three weeks of court hearings earlier this year. On Wednesday, Judge Conti announced his decision in the case.

The VA may not be meeting all of the needs of the nation's veterans,” Judge Conti said in an 82-page ruling. But, the ability to do anything about it is “beyond the power of this court.” Instead he noted that the authority rests in the hands of Congress and the VA’s Secretary. Judge Conti said he found “no systemic violations system-wide that would compel district court” to take action.

Gordon Erspamer, attorney on behalf of veterans suing the VA, held a press conference following Judge Conti's ruling:

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