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INJURED IRAQ VETS SUE VA, ACCUSE SECRETARY
NICHOLSON OF BREAKING LAW -- Charges the VA has
not
provided prompt disability benefits, added
staff to reduce wait
times for medical care or boosted services for
PTSD. And
accuses VA of deliberately cheating some
veterans by allegedly
working with the Pentagon to misclassify PTSD
claims as pre-
existing personality disorders to avoid paying
out benefits.
Soon-to-be former VA Secretary Jim
Nicholson.
A question arises about this suit. None
of the major service organizations have signed on. Why is that?
First we have an AP news story. Then the
press release from the attorneys filing the suit.
To read the full complaint...click here...
http://www.mofo.com/docs/pdf/PTSD070723.pdf
Story here...
http://www.washingtonpost.
com/wp-dyn/content/article/2007/07/2
3/AR2007072300686.html
Story below:
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Injured Iraq War Veterans Sue VA Head
By HOPE YEN
The Associated Press
WASHINGTON -- Frustrated by delays in health care, a coalition of
injured Iraq war veterans is accusing VA Secretary Jim Nicholson of
breaking the law by denying them disability pay and mental health
treatment.
The class-action lawsuit against the U.S. Department of Veterans
Affairs, filed Monday in federal court in San Francisco, seeks broad
change in the agency as it struggles to meet growing demands from
veterans returning home from Iraq and Afghanistan.
Suing on behalf of hundreds of thousands of veterans, it charges that
the VA has failed warriors on several fronts _ from providing prompt
disability benefits, to adding staff to reduce wait times for medical
care to boosting services for post-traumatic stress disorder.
The lawsuit also accuses the VA of deliberately cheating some veterans
by allegedly working with the Pentagon to misclassify PTSD claims as
pre-existing personality disorders to avoid paying out benefits. The VA
and Pentagon have generally denied such charges.
VA spokesman Matt Smith said Monday he could not comment on a pending
lawsuit. But he said the agency is committed to meeting the special
needs of Iraq war veterans.
"Through outreach efforts, the VA ensures returning Global War on Terror
service members have access to the widely recognized quality health care
they have earned including services such as prosthetics or mental health
care," he said. "VA has also given priority handling to their monetary
disability benefit claims."
The lawsuit comes amid intense political and public scrutiny of the VA
and Pentagon following reports of shoddy outpatient care of injured
soldiers at Walter Reed Army Medical Center and elsewhere.
"Unless systemic and drastic measures are instituted immediately, the
costs to these veterans, their families, and our nation will be
incalculable, including broken families, a new generation of unemployed
and homeless veterans, increases in drug abuse and alcoholism, and
crushing burdens on the health care delivery system," the complaint
states.
It asks that a federal court order the VA to make immediate improvements
that would speed disability payments, ensure fairness in awards and
provide more complete access to mental health care.
Earlier this month, a federal appeals court in San Francisco issued a
strong rebuke of the VA in ordering the agency to pay retroactive
benefits to Vietnam War veterans who were exposed to Agent Orange and
contracted a form of leukemia.
"The performance of the United States Department of Veterans Affairs has
contributed substantially to our sense of national shame," the opinion
from the 9th U.S. Circuit Court of Appeals read.
Nicholson abruptly announced last week he would step down by Oct. 1 to
return to the private sector. He has repeatedly defended the agency
during his 2 1/2-year tenure while acknowledging there was room for
improvement.
More recently, following high-profile suicide incidents in which
families of veterans say the VA did not provide adequate care, Nicholson
pledged to add mental health services and hire more suicide-prevention
coordinators.
Some veterans say those measures aren't enough. In the lawsuit, they
note that government investigators warned as early as 2002 that the VA
needed to fix its backlogged claims system and make other changes.
Yet, the lawsuit says, Nicholson and other officials still insisted on a
budget in 2005 that fell $1 billion short, and they made "a mockery of
the rule of law" by awarding senior officials $3.8 million in bonuses
despite their role in the budget foul-up.
Today, the VA's backlog of disability payments is now between 400,000
and 600,000, with delays of up to 177 days to process an initial claim
and an average of 657 days to process an appeal. Several congressional
committees and a presidential commission are now studying ways to
improve care.
"While steps can and will be taken in the political arena,
responsibility for action lies with the agency itself," said Melissa W.
Kasnitz, managing attorney for Disability Rights Advocates, in a
telephone interview. Her group is teaming up with a major law firm,
Morrison & Foerster, to represent the veterans.
"We don't believe the problems will be fixed by the VA if we wait for
them," she said. "In the meantime, it is veterans who risk their lives
for our country who are suffering the consequences."
The lawsuit cites violations of the Constitution and federal law, which
mandates at least two years of health care to injured veterans.
The veterans groups involved in the lawsuit are Veterans for Common
Sense in Washington, D.C., which claims 11,500 members, and Veterans
United for Truth, based in Santa Barbara, Calif., with 500 members.
-------------------------
Press release here...
http://www.mofo.
com/news/pressreleases/12570.html
Press release below:
-------------------------
Class Action Filed Challenging Government’s
Mistreatment of Returning Veterans Suffering From Post-Traumatic Stress
Disorder
Veterans’ Civil Rights Case, first of its kind, includes Department of
Veterans Affairs and U.S. Attorney General Gonzales as defendants;
focuses on veterans from Iraq and Afghanistan conflicts; alleges
“unconscionable delays” and other violations of veterans’ constitutional
and civil rights
SAN FRANCISCO/WASHINGTON (July 23, 2007) --Attorneys at Morrison &
Foerster LLP have filed an unprecedented national class action lawsuit
alleging “shameful failures” by the U.S. Department of Veterans Affairs
(“VA”) and other government institutions to care for those veterans who
have returned from Iraq and Afghanistan and are now suffering from
post-traumatic stress disorder (“PTSD”). The firm is handling the case
on a pro bono basis.
The action was brought on behalf of veterans and their families seeking
or receiving death or disability compensation for PTSD, as well as those
who have pending claims or who have applied for VA medical benefits
based upon the disorder. The complaint was filed in the U.S. District
Court, Northern District of California.
Morrison & Foerster estimates the class size as between 320,000 and
800,000 veterans, by multiplying the number of military personnel
serving in Iraq and Afghanistan (1.6 million) by the estimated
percentage of PTSD amongst the returning troops (20% to 50%). The
non-profit Veterans for Common Sense and Veterans United for Truth are
among the plaintiffs.
Defendants include R. James Nicholson, Secretary of the VA (who resigned
on July 17, effective later this year); Alberto Gonzales, Attorney
General of the United States, Dr. Michael Kussman, Under Secretary of
the Veterans Health Administration; Daniel L. Cooper, Under Secretary
for the Veterans Benefits Administration, Pritz K. Navara, Veterans
Service Center Manager, VA Oakland Regional Office, and various other
government officials.
The plaintiff class seeks declaratory and injunctive relief only – no
monetary damages – and challenges the constitutionality of the Veterans
Judicial Review Act, and related administrative policies and procedures.
Plaintiffs allege a number of policy failures on the part of the VA,
including:
* repeated violations of federal statutes guaranteeing health care for
returning veterans;
* unconscionable delays and prohibitively complicated procedures in the
adjudication of claims seeking benefits or medical care and appeals,
coupled with the VA’s providing misleading timeliness statistics to the
American public;
* the VA’s premature and intentional denial of claims, and other
administrative abuses calculated to boost incentive bonuses for VA
employees;
* exertion by VA officials in Washington, DC of bureaucratic pressure
and influence upon the adjudication of PTSD claims by regional VA
offices; and
* a pattern of chronic under-funding and under-staffing of VA programs.
According to Gordon P. Erspamer, a litigation partner in Morrison &
Foerster’s Walnut Creek office: “This isn’t a case about isolated
problems or the type of normal delays and administrative hassles we all
occasionally experience with bureaucracies. This case is founded on the
virtual meltdown of the VA’s capacity to care for men and women who
served their country bravely and honorably, were severely injured, and
are now being treated like second-class citizens.”
“The delays caused by the VA have created impenetrable barriers to
relief for thousands of impaired veterans, whose suffering is compounded
by a VA system that denies them their fundamental constitutional and
civil rights that all the rest of us share,” Mr. Erspamer added.
Mr. Erspamer is acutely aware of the plight of veterans with serious
health problems having to endure interminable waits for treatment and
benefits from the government. His own father, Ernest, was exposed to
extensive radiation during atomic bomb tests in the Pacific Bikini Atoll
in 1946 and later developed leukemia, which took his life in 1980. Even
with her son’s help, it then took his mother more than ten years to
obtain disability and death benefits from the VA, a journey that
included the first case ever heard or decided by the newly created Court
of Veterans Appeals (now Court of Appeals for Veterans’ Claims) in 1990.
Erspamer v. Derwinski, 1 Vet. App. 3; 1990 U.S. Vet. App. LEXIS 1.
Morrison & Foerster also represented the National Association of
Radiation Survivors in the landmark due process case of NARS v. Walters,
473 U.S. 305, which addressed many of the same types of abuses as
today’s filing.
Paul Sullivan, Executive Director of Veterans for Common Sense,
explained his organization’s participation in the class action: “Since
the Iraq and Afghanistan wars began, VA has betrayed our veterans.
Instead of hiring more doctors and claims processors, VA instituted new
policies that block veterans’ access to prompt mental healthcare.
America should be outraged. While we are reluctant to file suit against
VA, it is VA’s anti-veteran policies that leave us no other option than
to fight for what our veterans earned after fighting on the front lines
in Iraq and Afghanistan.”
Bob Handy, Chair of plaintiff group Veterans United for Truth,
emphasized the non-partisan nature of the suit, stating that “We believe
that this is a case that all points of the political spectrum will
support, as regardless of one’s views on the current wars, we all share
the strong belief that we should take care of those who die or are
wounded in battle.”
The current complaint explains how the large influx of veterans from
Operation Enduring Freedom in Afghanistan and Operation Iraqi Freedom in
Iraq has finally crippled a long-struggling system — with 200,000 new
disability claims arising from these two actions alone. The complaint
further reveals the existence of over 600,000 back-logged claims
covering all manner of illness, with many taking more than 10 years to
be fully adjudicated.
The Plaintiffs assert that the existing VA system for obtaining benefits
or medical care is especially ill-suited for dealing with PTSD. The
complaint cites a recent report issued by the Defense Department’s Task
Force on Mental Health, which found that 38% of soldiers and 50% of
National Guard members who have served in Iraq or Afghanistan report
mental health issues ranging from post-combat stress to brain injuries.
“PTSD is prevalent in troops returning from the current wars because of
multiple rotations into combat, the absence of battle lines, widespread
use of improvised explosive devices, the moral ambiguity of killing
combatants dressed as civilians, the unprecedented use of National Guard
and Reserve troops, and the use of body armor that saves lives but
leaves minds and bodies shattered,” the complaint explains.
The complaint further alleges that federal government officials have
improperly induced many soldiers suffering from PTSD to accept
“personality disorder” discharges, precluding veterans from obtaining
disability benefits or receiving ongoing medical treatment because the
disorder is then classified as a pre-existing condition.
“More than 22,500 soldiers across the armed forces have been
suspiciously diagnosed and discharged with ‘personality disorder’ in the
last six years, condemning them to a lifetime of disability without any
compensation or access to VA medical care,” the complaint states.
“Many of these veterans simply give up in frustration and despair or
die—some committing suicide,” added Morrison & Foerster’s Mr. Erspamer.
The complaint summarizes: “Unless systemic and drastic measures are
instituted immediately, the costs to these veterans, their families, and
our nation will be incalculable, including broken families, a new
generation of unemployed and homeless veterans, increases in drug abuse,
increases in alcoholism, and crushing burdens on the health care
delivery system and other social services in our communities.”
For further information, please contact lead counsel for Plaintiffs,
Gordon P. Erspamer, 925-295-3341,
GErspamer@mofo.com .
Other sources for information include Russell K. Terry, CEO/Founder,
Iraq War Veterans Organization, Inc., 909-494-6218,
webmaster@iraqwarveterans.org , Ronald B. Abrams, Deputy Director,
National Veterans Legal Services Project, 202-265-8305,
ron_abrams@nvlsp.org , Michael
Blecker, Executive Director, Swords to Plowshares, 415-252-4787,
extension 321, mblecker@stp-sf.org
, and Amy Fairweather, Director of Iraq Veteran Project, Swords to
Plowshares, 415-252-4787, extension 356,
afairweather@stp-sf.org .
The complaint can be viewed at
http://www.mofo.com/docs/pdf/PTSD070723.pdf.
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Larry Scott --
