For veterans with mental illnesses, court reluctantly steps in where Congress should have

By Associate Dean Michael Waterstone

A recent Ninth Circuit decision is part of a long-standing debate about the difference between our stated commitment to take care of disabled veterans, and what really happens on the ground.

A group of veterans sued the Department of Veterans Affairs, seeking declaratory and injunctive relief to remedy delays in the provision of mental health care and the adjudication of service-connected death and disability compensation claims by the VA. The Veterans argued that these delays violated their due process rights to receive the care and benefits they are guaranteed by statute. The case dramatically demonstrated the nature of the delays: for example, it takes an average of more than four years for a veteran to fully adjudicate a claim for benefits (during which time many are mooted by deaths). The court was explicit that these delays were not in keeping with our country's stated commitment to veterans, writing "on an average day, eighteen veterans of our nation's armed forces take their own lives. ... Among all veterans enrolled in the VA system, an additional 1,000 attempt suicide each month. Although the VA is obligated o provide veterans mental health services, many veterans with severe depression or post-traumatic stress disorder are forced to wait weeks for mental health referrals and are given no opportunity to request or demonstrate their need for expedited care. For those who commit suicide in the interim, care does not come soon enough."

So the VA is a mess (which is not new news). What to do about it? The court struggled here, noting that "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 came to light years ago." The court was also cognizant that it was not really the ideal branch of government to address these problems. But ultimately, the court viewed these delays as violating the plaintiff's constitutional rights "to be free from unjustified governmental deprivation of property - including the health care and benefits that our laws guarantee veterans upon completion of their service."

Two things stand out in this case. First, it confirms that mental illness is still more stigmatized and less understood than physical injuries. This dates back to the treatment of veterans from the Civil War, where the veterans' pension system systematically undervalued mental injuries sustained in conflict. Especially at the highest levels, the VA has made admirable strides in recognizing and treating mental illnesses like PTSD, but its administrative machinery still has a ways to go to catch up.

Second, the ultimate resolution of this case will be that the district court will oversee systemic reform in the VA. This was the real sticking point with the dissent: "The majority hijacks the VA's mental health treatment and disability compensation programs and installs a district judge as reluctant commandant-in-chief." The majority seemed to take no real joy in the courts taking on this role, but viewed there as being no real alternative. Systemic litigation with courts overseeing large institutions has been less in vogue of late, and this case stands out as one of the largest institutional reform cases in recent years.