There are approximately 25 million veterans in the United States. Roughly 25% are enrolled for health care with the VA, whose mission is to fulfill Lincoln's promise to care those who bore the battle. Among health threats to veterans, they face a heightened risk of suicide, approximately 3.2 times higher than the general population. On average, 18 veterans commit suicide each day, with another 1,000 attempting suicide each month. The VA is obligated to provide mental health treatment for veterans, but delays, often as long as four years, leave them in danger. Frequently they die before their claims are adjudicated, rendering their claims moot.
Responding to this crisis, two non-profit organizations, Veterans for Common Sense and Veterans United for Truth, sought injunctive and declaratory relief to remedy the delays in (1) the provision of mental health care and (2) the adjudication of service connected death and disability compensation claims by the VA. These groups, filing on behalf of a putative class of all veterans with Post Traumatic Stress Disorder (PTSD) in need of medical services, asked the Ninth Circuit to decide whether delays in adjudicating claims violate Veterans' due process rights to receive care and benefits they are guaranteed by statute. In a 104 page opinion, the Ninth Circuit agreed. Initially, the Court indicated that his case is one where the political branches of government failed to act in a manner consistent with the Constitution. The Court found that inaction by both Congress and the Executive branch forced its hand.
The Ninth Circuit found that the Constitution affirms that the People have enforceable rights under the Constitution and that one such right is to be free from unjustified governmental deprivation of property - including the health care and benefits that laws guarantee veterans upon completion of their service (e.g., 38 U.S.C. § 1710). Describing delays within the VA as "unchecked incompetence," the Court indicated that there comes a time when the judiciary must step in to enforce these rights.
The Veterans Health Administration (VHA), one branch of the VA, is charged with providing health care to veterans. Veterans who have served the required length of service have a statutory right to care, including medical examinations, treatment and rehabilitative services. The VA is also required to provide readjustment counseling and related mental health care services to eligible veterans. The law provides that the VA must provide a mental health assessment as soon as practical, but not later than 30 days, after receiving a request. If the examining physician or psychologist determines that care is needed, then mental health services "shall" be furnished.
Recognizing the needs of veterans, in July 2004, the VA developed and adopted a five year Mental Health Strategic Plan to improve the provision of mental health care services. One of its core purposes was to reduce the incidence of suicide among veterans. Unfortunately, the plan has not been fully implemented and even where implemented, its measures have fallen short of the expressed goals. An OIG report indicated that following a referral for depression, only 40% of VA facilities offered a same day evaluation; 24.5% reported a waiting period of 2 to 4 weeks and 4.5% reported waiting periods of 4 to 8 weeks. The waiting periods were longer following a referral for PTSD.
Similar delays exist when applying for benefits through the Veterans benefits Administration (VBA). The law requires the VBA to assist veterans applying for benefits. In addition to assistance in gathering documents, the duty to assist includes providing a medical exam for veterans diagnosed with PTSD. Veterans receiving care at a VHA facility may be required to undergo a compensation and pension examine which may result in a contrary diagnosis. The examination results determine the level of disability assigned, which determines the compensation rate for disability benefits. During the pendency of the application process, the veteran is statutorily barred from paying a lawyer for representation and must rely on pro bono assistance. Of the 400,450 claims pending on April 12, 2008, it was estimated that approximately 11% lead to a Notice of Disagreement, which initiates the appeal process. While veterans are subject to forfeiture of their appeal rights for delay in responding, there are no such time limits on the VBA. Veterans experience long delays in the adjudication of their death and service-connected disability claims. On April 12, 2008, there were 101,019 rating-related claims which had been pending for over 180 days. Where a Notice of Disagreement is filed, the administrative process extended those delays; on average, it took 573 days for a case to be certified to the Board of Veterans' Appeals. The average time for a direct appeal to the Board was a mere 336 days without a hearing and 455 days when a hearing is requested. For veterans who file a notice of disagreement following the regional office's issuance of an initial decision, the average length of time from the initial filing of the notice of disagreement through the date of decision by the Board was 1,419 days. Approximately 40% of Board decisions remand the case for further proceedings where it takes an average of 499.1 days to return to the Board; in PTSD cases, the average time is an additional 563.9 days. During the six month period from October 2007 to April 2008, 1,467 veterans died during the pendency of their appeal.
On appeal, the Ninth Circuit held that sovereign immunity did not bar the claims related to the VHA. Because the veterans did not seek money damages, immunity was statutorily waived. The Court affirmed dismissal of claims under the APA because there was no allegation of a "discrete" agency action (as opposed to system wide delays) the VA was required to take. Similarly, the Veterans Judicial Review Act did not bar review of the veterans' constitutional claims. Although the Court found that it ability to grant the specific relief requested by the veterans was limited, it could hold that hold that their Due Process rights had been violated. The Court agreed that the delay in the provision of care, particularly where veterans are suicidal, it tantamount to a denial of care with care being a property right. In addressing the due process issue, the Court found the system so flawed that "any" additional procedure designed to safeguard veterans' rights would produce a meaningful improvement in their situation. The issue was remanded for determination of those safeguards necessary to protect veterans' rights.
Similarly, the veterans were denied due process relating to their VBA claims. The "property interest in their service-connected death and disability compensation could not be more vital -- many recipients of such benefits are totally or primarily dependent upon that compensation for their financial support and the support of their families." Given the number of veterans who die during the pendency of their claim, the court found the private interest in enforcing this interest was strong. Although the VA argued its process was adequate and was attributed to prioritization in processing initial claims, the Court found that delays appear to be the result of gross inefficiency, not resource constraints. Having found a denial of due process rights, the issue was remanded with instruction that the Court conduct a hearing to determine what procedural protections are most appropriate to permit the appeals of veterans to be expedited in an efficient manner.
Before concluding, the Court considered whether the fee limitation for attorneys is appropriate. The Court noted that it is designed to create a non-adversarial process at the regional office level. Congress imposed the duty to assist veterans as the trade-off for this limitation. The veterans failed to make a strong showing that the current system carries with is a high probability of error or that a more formal system would decrease the probability of error. Accordingly, the district court's finding that restricting the veterans' right to involve a paid attorney at the regional office level did not violate due process rights.
Veterans for Common Sense et al. v. Shinseki, 2011 U.S. App. LEXIS 9542 (May 20, 2011)
Article reprinted from National Academy of Elder Law Attorneys, Inc.
