Editorial Prepared by Gordon Erspammer JD lead Attorney for VCS-VUFT vs Eric K. Shinseki

I frequently am asked the fundamental question of why the benefit and health care delivery systems for veterans administered by the Department of Veterans Affairs are so dysfunctional. Like many things, there is no simple answer. In many ways, the VA is like a battleship, with powerful forces of inertia and mass frustrating the ability of administrators to make any meaningful changes. The unfortunate result is that all too often, the well-being of veterans and their families is compromised, and many never receive the benefits that Congress intended.

First, a major underlying factor in the present state of affairs is the structural impediments that insulate the VA from accountability. These include: (1) a statutory prohibition dating back to the Civil War that forbids veterans from paying counsel any money to represent them in any claims for benefits, which effectively eliminates access to counsel for most veterans; (2) the long history of a statutory bar to judicial review of VA claims decisions, which was finally changed in part in 1990 by the creation and opening of the Court of Appeals for Veterans Claims, a specialty court with very circumscribed powers and authority; and (3) the Feres doctrine, emanating from a Supreme Court decision during the Cold War, which in effect immunized the government from any liability to active-duty military personnel.

These provisions have combined to give the VA extraordinary latitude to do what it pleases, and to restrict veterans’ access to justice. The VA supports and clings to these restrictions on veterans’ civil rights, relying on outdated and inaccurate characterizations of its processes as nonadversarial. For far too long, the VA has resisted the rule of law and compliance and enforcement procedure, and required each veteran to repeat the same struggle for justice.

Second, the VA has never grappled with or solved the major problems that have plagued it for decades, such as the glaring lack of internal controls, the ever-expanding backlogs of claims and appeals, and the long waiting lists for health care. Instead, the VA simply resets its “goals” to account for further deterioration in timeliness, and the lines just get longer. From the management perspective, the VA hops from crisis to crisis, sometimes on multiple, simultaneous fronts, acting much like a player in a multipanel game of “Whack a Mole.”

And most recently, we have seen stories about Inspector General audits of how the VA “cooks the books” regarding statistical measures, such as patient wait times. And even last week I learned that, after extensive litigation and investigations into the VA’s manipulation of its electronic waiting lists for health care, the VA in June 2009 quietly redefined what the standard for being placed on a waiting list by requiring that patients have to wait for at least 120 days (rather than 30) before even being placed on the electronic waiting list. For suicidal veterans, we need to acknowledge that a delay in providing care may turn out to be a death sentence. If the VA’s eye were on the ball of its mission of serving veterans, it would not need to resort to applying the principles of “how to lie with statistics.” And the backlogs of claims and appeals and remands in the VA adjudications system for death and disability compensation have continued markedly to deteriorate. For example, how can anyone defend a system that requires five to 10 years to resolve a veteran’s appeal? This is a cardinal example of how justice delayed is justice denied.

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