Special Reports
Veterans' groups to appeal judge's decision over VA's treatment of PTSD cases
By Jason Leopold
Online Journal Contributing Writer


Jul 1, 2008, 00:20

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.

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 emails 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 email with the subject line �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 email 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 email to Brig. Gen. Michael J. Kussman, the Veteran Health Administration�s undersecretary for health.

Katz�s email 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 underprepared 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.