Judge rules against VA court order

Times Staff Writer

A federal judge in San Francisco ruled Wednesday that although the Department of Veterans Affairs might have provided inadequate care or benefits to some veterans with post-traumatic stress disorder, the department had not done so systematically.

Veterans had sought a court order to compel the VA to improve services. U.S. District Judge Samuel Conti agreed that some veterans experienced “significant” delays in trying to untangle problems with their benefits but said he could find no “systemic violations” that compelled court intervention.

The authority to fix problems at the VA, he wrote, “lies with Congress, the secretary of the Department of Veterans Affairs, the adjudication system within the VA and the Federal Circuit.”


The VA was “pleased with the decision,” said Phil Budahn, a department spokesman in Washington, D.C. But “we’re not going to go beyond that right now,” he said.

Wayne Seward, 53, of Carlsbad, a Navy veteran, echoed the sentiment of several veterans when he said he was angry with the decision. Seward said he attempted suicide five years ago after the VA said he needed to wait five months to see a mental health professional.

“We keep saying we support the troops,” Seward said. “Well, gee, we’ve missed that one.”

But Paul Sullivan, executive director of Veterans for Common Sense, one of the groups involved in the lawsuit, was not entirely disappointed.

“We consider this a very loud and bright warning shot over the bow for VA and Congress to fix the VA now, because the judge actually agreed with many of the allegations in our lawsuit,” Sullivan said.

His Washington, D.C.-based group and the other plaintiff, Santa Barbara’s Veterans United for Truth, plan to appeal.

The class-action case, filed in July on behalf of all veterans suffering from the disorder, accused the VA of “shameful failures” in providing medical and mental healthcare and building up an enormous backlog of benefits claims and appeals.

During the trial in April, the veterans groups showed an internal VA e-mail that counted about five suicides a day by veterans under the department’s care. They also showed an e-mail from a program coordinator in Texas that discouraged doctors from diagnosing the disorder quickly, “given that we are having more and more compensation-seeking veterans.”

The veterans groups cited an inspector general’s report that showed 25% of appointments had waiting times of more than 30 days. They also counted more than 400,000 benefits claims pending in the system in April.

The groups found that more than 1,400 people had died between October 2007 and March 2008 while waiting for their appeals on disability benefits.

The VA, represented by the Department of Justice, has contended that it runs “an outstanding medical system that [has] been a leader worldwide in treating PTSD.”

In statements filed in court, government lawyers said the Veterans Benefits Administration “has also performed exceptionally given the substantial increase in the number and complexity of disability claims.”

The government said court intervention was unnecessary because the VA was already moving to improve service. The Veterans Health Administration is on target to spend $3.5 billion on mental health in 2008 and has added 3,700 mental health professionals in the last two years, the government said.

Government attorneys also challenged figures presented by the veterans groups in court. They said that up-to-date figures showed that nearly 99% of veterans seeking mental health appointments were seen within 30 days.

Conti found that the individual veterans had standing to complain against the VA.

“Given the dire consequences many of these veterans face without timely receipt of benefits or prompt treatment for medical conditions, especially depression and PTSD, these injuries are anything but conjectural or hypothetical,” he wrote.

But Conti said the delays, though “significant,” did not violate a veteran’s right to due process because there was no consensus on what “timely” processing would be.

Gordan Erspamer, one of the lead lawyers for the veterans, said he was hopeful an appeal would bring some kind of solution: “We’re basically left in a situation in which there is a wrong and no remedy.”

Rep. Bob Filner (D-Chula Vista), who chairs the House Veterans Affairs Committee, said he believed that there was enough evidence of systemic negligence and wished Conti had taken some action.

“People think VA stands for ‘Veterans Adversary’ because they have to fight, fight, fight for benefits that should be a no-brainer,” he said.

Filner said Congress will continue to appropriate money for the VA and call hearings to investigate problems.

“At the hearings, we have spotlighted a lot of deficiencies, but it doesn’t mean anything changes,” he said. “They always say it’s unfortunate that’s occurred, but they don’t take any responsibility.”

Dr. Judith Broder, who founded the Soldiers Project, a free and confidential counseling service for service members and their families, worried about the effect of the verdict on veterans with post-traumatic stress disorder.

“What I think it means is that there will be more tragic stories,” said Broder, a Studio City-based psychiatrist who was not involved in the lawsuit.

“If there are delays, which probably are inevitable, unless the person has an advocate, . . . they’ll throw up their hands and say forget it,” Broder said of veterans. “Even if that doesn’t mean suicide, it can mean lots of suffering.”