"There comes a time when the political branches have so completely and chronically failed to respect the People's constitutional rights that the courts must be willing to enforce them. We have reached that unfortunate point with respect to veterans who are suffering from the hidden, or not hidden, wounds of war," said the ruling written by Judge Stephen Reinhardt and joined by Senior Judge Procter Hug Jr.

Combat-related mental illnesses are so "egregious" that they violate veterans' constitutional rights and contribute to the despair behind many of the 6,500 suicides among veterans each year.

Shame on Congress, Shame on the Administration for ignoring the Inspector General's Report (2007) recommendations. 

Vera Sharav

Los Angeles Times

Court orders major overhaul of VA's mental health system

9th Circuit says treatment delays for PTSD and other disorders are so 'egregious' that they violate veterans' rights. Judges say they waited 'long enough' for the VA to act and were compelled to intervene.

May 11, 2011 |By Carol J. Williams

A federal appeals court Tuesday lambasted the Department of Veterans Affairs for failing to care for those suffering post-traumatic stress disorder and ordered a major overhaul of the behemoth agency.

Treatment delays for PTSD and other combat-related mental illnesses are so "egregious" that they violate veterans' constitutional rights and contribute to the despair behind many of the 6,500 suicides among veterans each year, the U.S. 9th Circuit Court of Appeals said in its 2-1 ruling.

Noting that an average of 18 returning service members commit suicide each day, the court directed a district judge in San Francisco to order sweeping reform of the VA's mental healthcare system.

The appeals court took nearly two years to issue its decision, in part because the court attempted to force the government to negotiate with the two veterans' groups that sued over mental health care and benefits that had been delayed or denied.

Citing the court's inability to order the government "to work faster," Chief Judge Alex Kozinski had urged lawyers for the VA and the veterans groups to use the court's mediation services to work out a plan for meeting the wounded veterans' needs. The talks deadlocked and no settlement was reached.

"There comes a time when the political branches have so completely and chronically failed to respect the People's constitutional rights that the courts must be willing to enforce them. We have reached that unfortunate point with respect to veterans who are suffering from the hidden, or not hidden, wounds of war," said the ruling written by Judge Stephen Reinhardt and joined by Senior Judge Procter Hug Jr., both appointees of President Carter.

"The VA's unchecked incompetence has gone on long enough; no more veterans should be compelled to agonize or perish while the government fails to perform its obligations," the ruling said.

Kozinski dissented, saying that "much as the VA's failure to meet the needs of veterans with PTSD might shock and outrage us, we may not step in and boss it around."

He predicted that the majority's directive would only prolong litigation and complicate the agency's efforts to improve services.

"We would have preferred Congress or the President to have remedied the VA's egregious problems without our intervention when evidence of the department's harmful shortcomings and its failure to properly address the needs of our veterans first came to light years ago," the majority said in heeding the chief judge's concerns.

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THE NEW YORK TIMES

Editorial, May 18, 2011

A Victory for Veterans

The United States Court of Appeals for the Ninth Circuit ordered an overhaul of mental health care for veterans, who are killing themselves by the thousands each year because of what the court called the “unchecked incompetence” of the Department of Veterans Affairs.

In a scathing 2-to-1 ruling on May 10, the judges said delays in treating post-traumatic stress disorder and other combat-related mental injuries violated veterans’ constitutional rights. The delays are getting worse as more troops return from Afghanistan and Iraq, the judges said. About 18 veterans commit suicide on an average day.

The government’s obligations are clear. Veterans are entitled by law to be treated for injuries and illnesses. Benefits claims are supposed to be dealt with in days or weeks, but it takes an average of more than four years to fully adjudicate a mental health claim. When a veteran appeals a disability rating, the process bogs down drastically. The problem is an overwhelmed bureaucracy and a chronic inadequacy of resources and planning.

The judges said the system for screening suicidal patients was ineffective, and cited a 2007 inspector general’s conclusion that suicide-prevention measures were mostly absent. The same report found that the veterans department’s regional medical centers have suicide-prevention experts, but its 800 community-based outpatient clinics — which veterans most often use — do not. This crisis plagues active-duty soldiers, too, and the Pentagon has lagged in responding effectively. The government has long known what it was up against with P.T.S.D. and brain injuries — the signature afflictions of current wars.

This new ruling came two years after the appeal was filed, during which lawyers for the government and the nonprofit advocacy organizations that sued, Veterans for Common Sense and Veterans United for Truth, were trying to negotiate a plan for fixing the system. Those negotiations did not succeed, so the judges have remanded the case to the district court to order one.

The government can keep appealing, but it should work with the advocates and enact a plan to fulfill the promise of the veterans affairs secretary, Eric Shinseki, to do better. For 25 million veterans, including 1.6 million who served in Afghanistan and Iraq, the choice is clear.