Court rejects veterans’ disability claims unfairly, Louisiana advocate says

Published: Tuesday, July 06, 2010, 8:46 PM     Updated: Tuesday, July 06, 2010, 8:57 PM

Bruce Alpert, Times-Picayune
http://www.nola.com/crime/index.ssf/2010/07/court_rejects_veterans_appeals.html

A Louisiana veterans advocate Tuesday accused the Court of Appeals for Veterans Claims of rejecting many valid disability claims.

“Veterans are not being treated fairly,” said Paul Labbe, who heads the Louisiana Veterans Advocacy Group of Lake Charles.

Labbe said he also fears that a civil rights lawsuit alleging improper treatment by a doctor at the VA Alexandria Medical Center in Pineville will be thrown out if a federal judge accepts the arguments of Veterans Affairs lawyers.

A filing by government lawyers argues that the suit doesn’t meet the criteria for a civil rights case and shouldn’t be allowed to continue to trial.

Members of Congress have been looking at the issue of rejected disability claims after Assistant U.S. Solicitor General Anthony Yang admitted during a Supreme Court hearing in February that between 50 percent and 60 percent of veterans disability cases are mishandled by the Department of Veterans Affairs.

Chief Justice John Roberts was surprised by the admission.

“Well, that’s really startling, isn’t it?” Roberts said. “In litigating with veterans, the government more often than not takes a position that is substantially unjustified?”

Labbe said the Court of Appeals for Veterans Claims continues what he called the injustice of rejecting the vast majority of appeals by veterans denied disability benefits by the VA.

“Veterans aren’t getting any justice at this court,” Labbe said at a news conference outside the court’s Washington, D.C., headquarters.

In 2007, a Harvard University study said it takes the Department of Veterans Affairs an average of six months to process a disability claim, and the appeals process takes a little less than two years. Because many veterans applying for disability benefits are elderly, many die before a final decision is rendered, the study said.

Calls to the court’s chief justice, William Greene Jr., were not immediately returned.

The House Veterans Affairs Committee heard testimony last week about legislation that would give veterans more time to file appeals.

Rep. John Adler, D-N.J., discussed the case of Korean War veteran David Henderson, a diagnosed schizophrenic, who was denied a hearing because his appeal was filed 15 days past the 120-day deadline set by the court. His disability, Henderson said, made it impossible for him to get the papers together in time to meet the court’s deadline.

“The veterans’ claims process is extremely difficult to navigate, especially when doing so without the aid of an attorney or while suffering from a mental disability,” Adler said.

Rep. Alcee Hastings, D-Fla., said he was distressed to hear about a veteran in his state who was cut off from his veterans’ pension for a year, two days after he voluntarily disclosed that insurance was paying some medical costs resulting from an accident in which an automobile struck his wheelchair, knocking him head first against the pavement.

Given that it takes many months to qualify for benefits, Hastings said he found it disturbing that someone could be cut off benefits in just two days.

“This means that the law effectively punishes veterans when they suffer from such an accident or theft,” Hastings said.

Bruce Alpert can be reached at balpert@timespicayune.com or 202.383.7861.

Also see:

http://johnhall.house.gov/index.php?option=com_content&view=article&id=1215:hall-applauds-new-post-traumatic-stress-disorder-rule-for-americas-veterans&catid=39:news-center&Itemid=32

"Keep on, Keepin' on"
Dan Cedusky, Champaign IL "Colonel Dan"
See my web site at:
http://www.angelfire.com/il2/VeteranIssues/

July 7, 2010

http://www.nytimes.com/2010/07/08/us/08vets.html

V.A. Is Easing Rules to Cover Stress Disorder

By JAMES DAO

The government is preparing to issue new rules that will make it substantially easier for veterans who have been found to have post-traumatic stress disorder to receive disability benefits, a change that could affect hundreds of thousands of veterans from the wars in Iraq, Afghanistan and Vietnam.

The regulations from the Department of Veterans Affairs, which will take effect as early as Monday and cost as much as $5 billion over several years according to Congressional analysts, will essentially eliminate a requirement that veterans document specific events like bomb blasts, firefights or mortar attacks that might have caused P.T.S.D., an illness characterized by emotional numbness, irritability and flashbacks.

For decades, veterans have complained that finding such records was extremely time consuming and sometimes impossible. And in the wars in Afghanistan and Iraq, veterans groups assert that the current rules discriminate against tens of thousands of service members — many of them women — who did not serve in combat roles but nevertheless suffered traumatic experiences.

Under the new rule, which applies to veterans of all wars, the department will grant compensation to those with P.T.S.D. if they can simply show that they served in a war zone and in a job consistent with the events that they say caused their conditions. They would not have to prove, for instance, that they came under fire, served in a front-line unit or saw a friend killed.

The new rule would also allow compensation for service members who had good reason to fear traumatic events, known as stressors, even if they did not actually experience them.

There are concerns that the change will open the door to a flood of fraudulent claims. But supporters of the rule say the veterans department will still review all claims and thus be able to weed out the baseless ones.

“This nation has a solemn obligation to the men and women who have honorably served this country and suffer from the emotional and often devastating hidden wounds of war,” the secretary of veterans affairs, Eric K. Shinseki, said in a statement to The New York Times. “This final regulation goes a long way to ensure that veterans receive the benefits and services they need.”

Though widely applauded by veterans’ groups, the new rule is generating criticism from some quarters because of its cost. Some mental health experts also believe it will lead to economic dependency among younger veterans whose conditions might be treatable.

Disability benefits include free physical and mental health care and monthly checks ranging from a few hundred dollars to more than $2,000, depending on the severity of the condition.

“I can’t imagine anyone more worthy of public largess than a veteran,” said Dr. Sally Satel, a psychiatrist and fellow at the American Enterprise Institute, a conservative policy group, who has written on P.T.S.D. “But as a clinician, it is destructive to give someone total and permanent disability when they are in fact capable of working, even if it is not at full capacity. A job is the most therapeutic thing there is.”

But Rick Weidman, executive director for policy and government affairs at Vietnam Veterans of America, said most veterans applied for disability not for the monthly checks but because they wanted access to free health care.

“I know guys who are rated 100 percent disabled who keep coming back for treatment not because they are worried about losing their compensation, but because they want their life back,” Mr. Weidman said.

Mr. Weidman and other veterans’ advocates said they were disappointed by one provision of the new rule: It will require a final determination on a veteran’s case to be made by a psychiatrist or psychologist who works for the veterans department.

The advocates assert that the rule will allow the department to sharply limit approvals. They argue that private physicians should be allowed to make those determinations as well.

But Tom Pamperin, associate deputy under secretary for policy and programs at the veterans department, said the agency wanted to ensure that standards were consistent for the assessments.

“V.A. and V.A.-contract clinicians go through a certification process,” Mr. Pamperin said. “They are well familiar with military life and can make an assessment of whether the stressor is consistent with the veterans’ duties and place of service.”

The new rule comes at a time when members of Congress and the veterans department itself are moving to expand health benefits and disability compensation for a variety of disorders linked to deployment. The projected costs of those actions are generating some opposition, though probably not enough to block any of the proposals.

The largest proposal would make it easier for Vietnam veterans with ischemic heart disease, Parkinson’s disease and hairy-cell leukemia to receive benefits.

The rule, proposed last fall by the veterans department, would presume those diseases were caused by exposure to Agent Orange, the chemical defoliant, if a veteran could simply demonstrate that he had set foot in Vietnam during the war.

The rule, still under review, is projected to cost more than $42 billion over a decade.

Senator Jim Webb, Democrat of Virginia and a Vietnam veteran, has asked that Congress review the proposal before it takes effect. “I take a back seat to no one in my concern for our veterans,” Mr. Webb said in a floor statement in May. “But I do think we need to have practical, proper procedures.”

More than two million service members have deployed to Iraq or Afghanistan since 2001, and by some estimates 20 percent or more of them will develop P.T.S.D.

More than 150,000 cases of P.T.S.D. have been diagnosed by the veterans health system among veterans of the two wars, while thousands more have received diagnoses from private doctors, said Paul Sullivan, executive director of Veterans for Common Sense, an advocacy group.

But Mr. Sullivan said records showed that the veterans department had approved P.T.S.D. disability claims for only 78,000 veterans. That suggests, he said, that many veterans with the disorder are having their compensation claims rejected by claims processors. “Those statistics show a very serious problem in how V.A. handles P.T.S.D. claims,” Mr. Sullivan said.

Representative John Hall, Democrat of New York and sponsor of legislation similar to the new rule, said his office had handled dozens of cases involving veterans who had trouble receiving disability compensation for P.T.S.D., including a Navy veteran from World War II who twice served on ships that sank in the Pacific.

“It doesn’t matter whether you are an infantryman or a cook or a truck driver,” Mr. Hall said. “Anyone is potentially at risk for post-traumatic stress.”

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"Keep on, Keepin' on"
Dan Cedusky, Champaign IL "Colonel Dan"
See my web site at:
http://www.angelfire.com/il2/VeteranIssues/