Closing Arguments Conclude in Veterans’ Class Action Over Long Delays in Care

     SAN FRANCISCO (CN) – Attorneys for veterans groups demanded a court order forcing the Veterans Administration to come up with a plan to reduce claims-processing delays, but VA attorneys said the solution is not that easy, as closing arguments concluded in the federal class action case, Veterans for Common Sense v. the Veterans Administration.




     Arturo Gonzalez, arguing on behalf of the veterans’ rights groups, slammed the VA’s inability to implement or monitor its Mental Health Strategic Plan, designed to reduce delays in the VA’s claims adjudication system. Some veterans wait up to 10 years to have their claims fully decided.
     Gonzalez noted that president Judge Samuel Conti said it best earlier in the trial when he commented to the effect of, “You can have the best plan in the world, but if it’s not implemented, it’s worthless.”
     Gonzalez pointed out that nobody from the VA took the stand and said what they would do to implement the plan, “because they know there is something called cross examination. Nobody from the VA is capable of sitting in that chair and telling you that any of this is being implemented.”
     William Feeley, Deputy Under Secretary for Health for Operations and Management in the Veterans’ Health Administration, “the man in charge,” acknowledged two weeks ago that he does not know when the plan was launched, whether regional offices are obligated to follow it, or whether there is a national suicide prevention plan for veterans, including for those returning from Iraq and Afghanistan.
     A study by the inspector general found that half of the program was at the pilot stage three years after implementation, and 61.8% of regional offices did not have suicide-prevention strategies for returning vets, though according to the VA’s own estimates, vets are killing themselves at 7.5 times the national average.
     The plaintiffs want the judge to appoint a Special Master to help the parties develop a plan for implementation and monitoring of claims processing, to shorten the time veterans must wait to process claims.
     Daniel Bensing, representing the VA, claimed there is a “dramatic disparity” between the “extreme and outrageous nature” of the allegations and what the evidence has shown. He said that unlike the plaintiffs, who “would like to wave a magic wand and make things happen, in the real world we cannot work miracles.”
     Bensing cited the substantial increase in claims submitted, from 675,000 in 2001 to 840,000 in 2007, the increasing complexity of claims, the need to gather evidence of service-related stressors in PTSD claims, and lack of money to hire new staff until recently, as roadblocks in implementing the Mental Health Strategic Plan and improving veteran care.
     Bensing said the court is prohibited from ruling on many of the plaintiffs’ claims. “Across the board, where plaintiffs bring challenges to select VA policies and procedures, those procedures are governed by regulation, either establishing a procedure, prohibiting a procedure or something else,” Bensing said.
     Judge Conti echoed Bensing’s theme in his request for post-trial memoranda from both parties, regarding jurisdiction in the case. Conti said he wants to know “what I can do, what I can’t do … by way of statutes, binding regulations and case law.” Conti will review the briefs and make a decision sometime in the next few months.
     The class action, filed in July 2007 by Veterans for Common Sense and Veterans United for Truth, claims the VA has failed to meet “our nation’s legal and moral obligations to honor and care for our wounded veterans who have served our country.”
     Plaintiffs cite a backlog of more than 600,000 claims, forcing some veterans to wait up to ten years for a claim to be fully decided. Morrison & Foerster represents the plaintiffs pro bono in this bench trial.

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