Initially referred to as being “shell shocked” and now properly diagnosed as Post Traumatic Stress Disorder (PTSD), soldiers returning from combat often suffer from severe psychological injuries as a result of horrific experiences they were exposed to. Today, with this country engaged in two wars and millions of men and women in military service in each of these theaters of combat, the concern for soldiers with PTSD is greater than ever.
Initially, this article will explore the expansive nature of the problem posed where so many of our military men and women return with psychiatric wounds after their time in combat. This article will go on to examine the first of its kind class action lawsuit, Veterans for a Common Sense v. Peake, which seeks to challenge the federal government’s failure to provide adequate treatment for those soldiers suffering with PTSD and other combat related psychiatric difficulties.
Veterans and PTSD
It is estimated that anywhere from 15% to 50% of troops returning from Iraq and Afghanistan suffer from PTSD in one form or another. One researcher places a conservative estimate of 300,000 psychiatric casualties from service in Iraq alone. The estimated cost of treatment for these Iraq veterans is in the range of $660 billion, which is greater than the total cost of the war itself ($500 billion). As evidence of this, a study done of the first 100,000 Iraq and Afghanistan veterans treated at Veterans Administration (“VA”) facilities showed that 25% of them received a mental health related diagnosis, and over half of these soldiers suffered from two or more diagnoses. With numbers this expansive it is not difficult to recognize the strain this will place on mental health resources and professionals alike.
However, studies also show that one of the most challenging problems is getting soldiers the treatment they need at an early stage before PTSD can become entrenched and cause increased psychological damage. Evaluations of soldiers completed immediately after return from combat show that about 5% of soldiers show significant mental health problems. This number jumps to 27% for active duty soldiers and 42% for reserve soldiers three to six months after return. Researchers and clinicians conclude that the reason for this dramatic increase is twofold. First, soldiers want nothing more than to come home to family and friends and they fear that if they admit that they are having psychiatric difficulties this will delay their homecoming. Second, PTSD and other psychiatric conditions often have a delayed onset.
While symptoms of PTSD vary greatly from individual to individual, some of the more insidious symptoms are a re-experiencing of traumatic events, difficulty sleeping and concentrating, and an inclination toward irritability and violence. These horrific symptoms, and the grand scale on which they are affecting returning veterans, has caused something of an epidemic relating to suicide attempts and acts. Some estimates show that 1,000 soldiers attempt suicide every month and 18 a day are successful. Simply put, these numbers are staggering.
A veteran seeking treatment with the VA must file a disability claim with one of 58 regional offices across the country. The proceedings at the VA that determine if the soldier has a valid disability claim are meant to be non-adversarial. Soldiers are not allowed to pay an attorney for assistance, demand evidence or compel people to testify. After the initial stage, if the veteran is displeased with the outcome, the soldier may file an appeal with the Board of Veterans Appeals, which can in turn, be appealed to the United States Court of Appeals for Veteran Claims.
Veterans for Common Sense v. Peake
In July of 2007, Veterans for Common Sense and Veterans United for Truth, two veteran’s advocacy groups, filed suit on behalf of all soldiers against James B. Peake, the Secretary of Veterans Affairs. The lawsuit alleged that veterans returning from our two present wars, as well as veterans from previous military engagements, were not receiving the treatment they were due for mental health related issues. Specifically, the lawsuit claimed that the VA’s treatment of veterans violated their constitutional as well as other federally protected rights. The lawsuit cited a backlog of up to 600,000 disability cases and that initial claims were often delayed as long as 160 days. The lawsuit complained of a shortage of mental health related treatment programs particularly for PTSD. Furthermore, and perhaps the most striking allegations, were that the VA was classifying genuine cases of PTSD as a “pre-existing personality disorder” to deny veterans disability claims. A spokesperson for the lawyers representing the plaintiffs made reference to the VA’s motto, taken from Abraham Lincoln’s second inaugural address, which is “to care for him who shall have borne the battle and for his widow and orphan.” The spokesperson went on to indicate that “The VA is not living up to their motto or its obligation to care for our disabled veterans.”
Initial attempts by the government failed to dismiss the lawsuit on a number of legally technical grounds. But perhaps the most striking tactic was the government’s claim that the law did not require it to provide care to returning veterans, but merely that the VA was to provide whatever treatment it could in light of available financial resources. The Court quickly rejected this argument and ruled that for veterans who have returned from combat in 1998, or after, the law requires that these soldiers receive mandatory health care for up to two years following their leave of service. In all, the government’s attempt to dismiss the lawsuit before it even started was unsuccessful and the lawsuit proceeded to a hearing where the Court could examine the merits of the case.
At the hearing, held in April of this year, a number of stunning facts were revealed. An Inspector’s General report in May of 2007 concluded that the VA’s mental health plan, which called for an immediate evaluation within 24 hours of a soldier’s request for an evaluation or referral for mental health services, had not been implemented system wide. The Director of the Seattle VA Psychiatric Emergency Services indicated that his hospital faced a “tsunami of medical need” as a result of the influx of psychiatric patients returning from Iraq and Afghanistan. The most striking revelations, however, were exposed in email communications. One email was from a VA psychologist who was instructing mental health counselors to minimize diagnoses of mental disorders in soldiers. Other emails speaking of the alarming number of suicide attempts and more tragically, success amongst soldiers, sought to hide or minimize these facts. An email from the VA’s chief communications officer stated, “I don’t want to give CBS any more numbers on veterans’ suicides or attempts than they already have, it will only lead to more questions.” In another email by the VA’s mental health director, when discussing the high rate of suicide stated, “is this something we should (carefully) address ourselves in some sort of release before someone stumbles on it?”
From this evidence it appeared clear that there was a wide ranging and systemic problem within the VA and its treatment of returning soldiers suffering from PTSD and other mental health disorders. The Court agreed, concluding that there were inadequacies and deficiencies within the VA system. Despite this finding, the Court ultimately dismissed the case, for many potentially unsatisfying reasons. In essence the Court concluded that the relief the plaintiffs sought in the case, ostensibly an expansive overhaul of the VA’s procedures was outside the scope of the Court’s powers. The Court concluded that for such systemic and far reaching change to take place, it will require an act of Congress or perhaps the Executive branch, which after all, controls the VA.
The Federal Court’s conclusion undoubtedly is an extremely troubling result for many. While finding major flaws and problems in the way in which the VA exercises its legal obligations to provide health care to veterans, the Court refused to act citing a spurious conclusion based on its inability to act in an executive or legislative capacity. Many of us look to the judicial branch of government to uphold concepts of fairness and protect our rights where other areas of the government will not. Unfortunately, the Court seems to have neglected that duty here. While true that the oversight of an overhaul of such a huge bureaucracy as the VA, which serves millions of veterans, is a herculean task to say the least, Courts have taken on, albeit smaller in scope, large overhauls of constitutionally deficient institutional systems such as schools and prisons.
For those who feel as though the court erred in its dismissal of the suit, take heart in the fact that the plaintiffs have filed for an appeal to the Ninth Circuit Court of Appeals. Quite possibly an Appellate Court will not be as reticent as the District Court to assert its authority. To be sure, a contrary ruling by the Ninth Circuit would undoubtedly lead to an appeal to the United States Supreme court.
If nothing else, it is clear that a greater effort must be made by our government in general, and the VA in specific, to properly treat and diagnose soldiers returning from war. These men and women simply deserve no less. It is encouraging to know, however, that groups such as Veterans for Common Sense and Veterans United for Truth are willing to fight to ensure that soldiers obtain the benefits they so valiantly earned. Even if the present lawsuit is no more successful on appeal than it already has been, surely the negative attention brought to the plight of soldiers suffering with mental illness will garner a greater level of care and treatment; if for no other reason than to avoid the harmful publicity.