The plaintiffs in the case of Veterans for Common Sense v. Eric K. Shinseki thought they had a sure winner on their hands. Filed by veterans’ rights groups in 2007 against the Department of Veterans Affairs (VA), the lawsuit, which demanded that the department fix its mental-health-care system, seemed to have public sentiment, the law, and the truth on its side.
But on Monday a federal appeals court in California voted 10–1 to dismiss the case, ruling that only Congress or the president has the authority to direct changes on how veterans are treated.
The decision overturns a 2–1 ruling last year by the same court, which said that the department’s “unchecked incompetence has gone on long enough,” and permitted the plaintiffs to ask a federal judge to order changes in the VA. The VA appealed that ruling to a larger panel.
Veterans’ advocates expressed extreme disappointment with Monday’s ruling. “It just shows that our veterans are not being served by the VA or by the courts,” said Paul Sullivan, a Gulf War vet and former executive director of Veterans for Common Sense (VCS) who currently works at Bergmann & Moore, a law firm that represents veterans. “There is a crisis at the VA—care is getting worse, not better, but they don’t want you to know about it. And now our veterans know that not even the courts are here to help them.”
Richard Eldridge, 64, who lives outside Toledo, Ohio, is a Vietnam War veteran who served in the Air Force from 1968 to 1990. He was diagnosed with PTSD, but "I've been fighting the VA to get my claim processed for 22 years,” he said. “It remains unresolved. I really believe they are incompetent. If I had a moment to talk with the secretary of the VA, I would tell him to please fix this claims process before we all die."
The sole dissenter in Monday’s ruling, Circuit Judge Mary Schroeder, wrote that the dismissal "leaves millions of veterans without any available redress for claims…No one could think this is just or what Congress intended."
Documents the plaintiffs presented during the original two-week non-jury trial in 2008 showed that it took the VA an average of nearly four and a half years to review veterans' health-care claims, that more than 1,400 veterans who’d been denied coverage died in one six-month period while waiting for their claims to conclude, and that 18 veterans per day were committing suicide.
The plaintiffs—VCS, along with Veterans United for Truth—also submitted emails between VA executives that they said confirmed the agency’s plan to suppress the number of attempted suicides by vets under VA care.
"Shhh!" began a Feb. 13, 2008, email from Dr. Ira Katz, a VA deputy chief. "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?"
A year before that email, Newsweek reported on the VA’s failure to properly treat ailing veterans because of a massive backlog of claims, lack of staff, and a bureaucracy that increased the stress many former troops already felt. Five years on, despite the VA’s claims to the contrary, the situation for Iraq and Afghanistan veterans has apparently gotten worse in a number of vital areas.
According to the VA’s own numbers, the backlog of compensation claims, which was about 500,000 in 2007, now stands at more than 1.1 million. Waiting times are longer, too, according to court documents. And 10,000 new patients come into the VA every month, half of whom are mental-health patients, according to Sullivan.
Despite the efforts by the VA secretary, Eric Shinseki, to address the department’s problems—including hiring more staff and updating its computer system—and despite the fact that President Obama has increased the agency’s budget by 10.5 percent, to $140 billion, critics say the VA’s problems are not getting any better.
“Veterans now wait an average of seven months for an initial VA claim decision, and we’re going to see as many as 500,000 to 600,000 more veterans enter the system in the next several years,” Sullivan said. “We hear complaints from our clients every day, and it’s happening across the country, from Tampa Bay to Houston to San Diego.”
Shinseki, who rode into the VA on a wave of promised reforms, told Congress in March that the agency has seen a 48-percent increase in compensation claims filed since 2008, and that he expects the volume to increase in 2013 to 1.25 million claims. Shinseki said the VA has reached a "tipping point" as far as dealing with the claims backlog.
“In 2013, our goal is to ensure that no more than 40 percent of the compensation and pension claims in the pending inventory are more than 125 days old,” Shinseki said in congressional testimony.
To help address the backlog, the VA announced last week that it was adding 1,900 mental-health clinicians and support staff to its existing staff of more than 20,000.
Rep. Jeff Miller (R-Fla.), chairman of the House committee with jurisdiction over veterans’ issues, told the AP that the VA’s plan looked like a knee-jerk reaction to the recent inspector general’s investigation of the VA, which the plaintiffs submitted to the court last week. That investigation found that nearly half of the veterans seeking mental-health care for the first time waited about 50 days before getting a full evaluation. The VA had said that the majority of evaluations were being conducted within 14 days.
A spokesperson for the VA told The Daily Beast that the agency is doing its best with the resources it has. “The VA places the highest priority on providing veterans living with mental-health issues and posttraumatic stress disorder with timely, responsive, high-quality care,” said Josh Taylor, press secretary for the VA. “While we have made progress, we fully recognize there is more work to be done.”
The bottom line, Sullivan said, is that the VA remains unequipped to handle the onslaught of veterans leaving active duty and entering the system, and as a result America continues to fail our wounded.