In 2007, Veterans for Common Sense (VCS) and Veterans United for Truth and Justice, Inc. (VUFT), two veterans’ advocacy organizations, filed a class action lawsuit against the U.S. Department of Veterans Affairs (VA). The lawsuit alleged that a severely dysfunctional VA system was delaying the disability claims of veterans with PTSD so badly that some were committing suicide while awaiting a VA decision.
In the original 2007 class action lawsuit:
- “Many veterans have committed suicide shortly after having been turned away from VA medical facilities either because they were told they were ineligible for treatment or because the wait was too long.” (p. 42, Item 172, 2007-07-23 – Full complaint)
- “Even where [VA mental health] services are technically available, [VA] acknowledged that “waiting lists render that care virtually inaccessible.” (p. 46, Item 187; also see Items 191, 192, 195, and 196, 2007-07-23 – Full complaint)
And in the 2011 9th U.S. Circuit decision:
- “…for some veterans, most notably those suffering from combat-derived mental illnesses such as PTSD, these delays may make the difference between life and death.” (p. 3, 2011-05-10 9th U.S. Circuity Majority Opinion on Decision, Minority Dissent)
Today’s VA healthcare crisis is neither new nor unknown to VA’s leaders, in part due to the lawsuit filed by VCS and VUFT.
The decision by the 9th U.S. Circuit Court of Appeals continues to have relevance to the current VA healthcare crisis:
1. VA knew about the delays in care and benefits, yet fought against the VCS court case.
2. The Courts documented the delays in care in benefits, including ascribing blame to VA. However, except for the initial 9th Circuit Court appeal victory in 2011, the Courts said the Court had no jurisdiction to reform and otherwise take over a severely dysfunctional VA.
In addition to the lawsuit, VCS testified before Congress several times about these issues between 2007 and 2010, helping to ensure that VA, Congress, and the public knew about these serious issues plaguing veterans seeking healthcare from the VA.
These serious issues continue. In 2012 (FY12), 19,500 veterans’s survivors were being paid where the veteran had died while waiting for VA to make a decision on their disability claims. (Source: Center for Investigative Journalism reporting)
Today, solutions remain out of reach and veterans continue to die waiting for their VA disability claims and requests for VA healthcare to be granted. Veterans commit suicide at a rate of 22 per day on average.
We as a nation can and must do better.
-Veterans for Common Sense, June 3, 2014
What was the VCS Lawsuit About?
Many veterans who have fought in Iraq and/or Afghanistan, as well as those who served in earlier conflicts, have not been 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. Despite 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, was for declaratory and injunctive relief, based primarily on the due process clause of the Constitution. It focused 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.
What was decided?
In 2011, the following media release discussed the 9th U.S. Circuit decision in favor of VCS and VUFT.
U.S. COURT OF APPEALS RULES THAT MEDICAL CARE DELAYS HAVE DEPRIVED VETERANS OF THEIR CONSTITUTIONAL RIGHTS
May 10, 2011 –The United States Court of Appeals for the Ninth Circuit issued a landmark decision today in favor of U.S. veterans, including those suffering from post-traumatic stress disorder (PTSD). In a decision that will impact tens of thousands of veterans in the U.S., the Ninth Circuit has ruled that the delay in providing medical care to veterans has deprived those veterans of their Constitutional rights.
Gordon Erspamer, Morrison & Foerster partner and lead counsel for Veterans for Common Sense, and Veterans United for Truth, discussed the decision and its implications for our veterans.
Veteran suicides have reached an epidemic level, with over 120 veterans taking their own lives every week, and 1000 suicide attempts per month among veterans under VA care. The 140-page decision noted that the U.S. Department of Veterans Affair has failed to provide veterans with timely medical care and that the executive and legislative branches had failed to remedy the situation. This is an enormous victory for veterans everywhere. “This decision hopefully will serve as a model for veterans in the future, and as a testament to the bond of faith between our citizens and the defenders of our freedom,” remarked Mr. Erspamer, lead counsel for plaintiffs; Sid Wolinsky, an attorney with Disability Rights Advocates added, “We expect that this decision will result in a swift decline in veteran suicides and attempted suicides and more timely processing of claims.” ____________________
On July 25, 2008 Plaintiffs Veterans for Common Sense and Veterans United for Truth, Inc. filed a Notice of Appeal of the decision issued by Senior Federal District Court Judge Samuel Conti. In his decision, Judge Conti held that although it is clear to the Court that the VA may need “a complete overhaul” the power to remedy this crisis lies with the other branches of government.
The importance of this appeal is underscored by the fact that a serious suicide epidemic among veterans continues to exist. Meanwhile, VA continues to turn away suicidal veterans, as shown by the recent case of Lucas Senescall in Spokane Washington. The flood of veterans with mental health problems will continue to increase as the wars go on. This is because, as a recent Army study found, repeat deployments increase the risk of PTSD by 50 percent, above and beyond what we are already seeing from veterans discharged from the first few years of the Iraq and Afghanistan wars.
In his decision, Judge Conti found that many veterans are suffering, and that the VA is the cause of much of that suffering. For these reasons, Plaintiffs believe they should continue to fight, that their cause is valid, and that Judge Conti was incorrect in holding that the courts are without power to grant veterans a remedy.
The U.S. Supreme Court refused to hear the appeal of the portion of the 9th U.S. Circuit Court decision that continues to effectively prevent veterans from using the Courts to appeal systemic VA problems, including delays and denials in medical care and disability benefits.
2007-07-23 – Full complaint – Veterans for Common Sense (VCS) and Veterans United for Truth and Justice, Inc. (VUTF) v. Secretary of Veterans Affairs, United States Department of Veterans Affairs, et al (VA). Case No. C-07-3758.
- “Many veterans have committed suicide shortly after having been turned away from VA medical facilities either because they were told they were ineligible for treatment or because the wait was too long.” (p. 42, Item 172)
- “Frances Murphy, M.D., the Under-Secretary for Health Policy Coordination at the VA, conceded in 2006 that mental healthcare is unavailable or not accessible at some VA facilities. (Frances M. Murphy, Statement Before the Former Members of the President’s New Freedom Commission on Mental Health (Mar. 29, 2006) at 7.) Even where services are technically available, Dr. Murphy acknowledged that “waiting lists render that care virtually inaccessible.” (p. 46, Item 187; also see Items 191, 192, 195, and 196)
Declarations of Veterans and Family Members in support of original complaint (class action lawsuit)
The following are very powerful and poignant documents, especially the ones related to suicide. Please read the declarations about the suicide cases with caution. Sensitive personal information was redacted.
- 2007-12-11-Redacted Dec of Veteran 1
- 2007-12-11-Redacted Dec of Veteran 2
- 2007-12-11-Redacted Dec of Veteran 3
- 2007-12-11-Redacted Dec of Veteran 4
- 2007-12-11-Redacted Dec of Girlfriend 1
- 2007-12-11-Redacted Dec of Mother 1
- 2007-12-11-Redacted Dec of Sister 1
- 2007-12-11-Redacted Dec of Brother 1
2008 Trial and Decision in Favor of VCS/VUFT (plaintiffs)
- 2008-06-25-Memorandum of Decision – U.S. District Court, Northern District of California, Memorandum of Decision, Findings of Fact and Conclusions of Law, dated June 25, 2008.
- 2008-06-25-Judgment – U.S. District Court, Northern District of California, Judgement in favor of the Defendants (VA). Dated June 25, 2008.
VCS/VUTF Notice of Appeal of 2008 Decision
Plaintiffs’ (VCS and VUFT) notice of appeal to the United States Court of Appeals for the 9th Circuit Final Judgement and all related interlocutory orders. Filed July 25, 2008, U.S. District Court, Northern District of California, San Francisco Division. (Complaint filed July 23, 2007; Trial Date April 21, 2008). Case No. C-07-3758-SC.
2011 Appeal – 9th U.S. Circuit
- 2011-07-01 Appellees’ Petition for Rehearing. U.S. Court of Appeals, 9th Circuit, Case No. 08-16728.
- 2011-07-05 Order re Response to Pet for Rehrg Due Date. Judge orders plaintiffs-appellants (VCS/VUFT) and defendants-appellees (VA) to submit responses to request for rehearing and rehearing en banc.
- 2011-08-09  Response to Appellee’s Petition for Rehearing
2011-05-10 9th U.S. Circuity Majority Opinion on Decision, Minority Dissent – VCS lawsuit appeal victory (Argued August 12, 2009, Submitted September 14, 2009, decision filed May 10, 2011): Case No. 08-16728, D.C. No. 3:07-cv-03758-SC. VCS/VUFT class action lawsuit victory over VA, affirmed in part, reversed in part, remanded in part.
- “Although the VA is obligated to provide veterans mental health services, many veterans with severe depression or post-traumatic stress disorder (“PTSD”) are forced to wait weeks for mental health referrals and are given no opportunity to request or demonstrate their need for expedited care.” (p. 2)
- “For veterans and their families, such delays cause unnecessary grief and privation. And for some veterans, most notably those suffering from combat-derived mental illnesses such as PTSD, these delays may make the difference between life and death.” (p. 3)
- “Indeed, the district court found that as of April 2008, approximately 85,450 veterans remained on VHA waiting lists for mental health services.” (p. 16)
- “The district court concluded that Veterans had standing to bring suit on behalf of their members, because the interests at state in the case were germane to the purposes of both organizations, both organizations’ members had suffered injuries in fact, there was a causal connection between the injuries and the VA’s conduct, and the relief sought would likely result in the amelioration of the injuries.” (p. 33)