- Written by Katharine Russ
29 Dec 2011
#10 CITYWATCH MOST READ 2011 - U.S. Court of Appeals for the 9th Circuit issued a landmark decision on May 10, 2011 that medical care delays have deprived veterans of their Constitutional Rights.
In a 104-page decision, Judge Stephen Reinhardt said, “Veterans who return home from war suffering from psychological maladies are entitled by law to disability benefits to sustain themselves and their families as they regain their health. Yet it takes an average of more than four years for a veteran to fully adjudicate a claim for benefits. During that time many claims are mooted by deaths.
“The delays have worsened in recent years, as the influx of injured troops returning from deployment in Iraq and Afghanistan has placed an unprecedented strain on the VA, and has overwhelmed the system that it employs to provide medical care to veterans and to process their disability benefits claims.
“For veterans and their families, such delays cause unnecessary grief and privation. And for some veterans, most notably those suffering from combat-derived mental illnesses such as PTSD, these delays may make the difference between life and death.”
Since May, Robert Handy, HMC USN (Ret) Chair- Veterans United For Truth, a Plaintiff, said that the VA has asked for an en banc hearing before the full panel of 11 judges and the case will likely be sent to the Supreme Court.
While it’s certainly no secret that General Eric Shinseki took over the helm of the Veterans Administration (VA) at the height of corruption and mismanagement, he promised to create relationships of trust, timeliness and excellence of services and support and to optimize opportunities for delivering the best services with available resources (January 14, 2009).
However, rather than agreeing with the court and resolving issues in Regional offices, the VA has chosen to fight this decision. Handy says this case could go on forever.
Over the past few years, the VA Office of the Inspector General (VAOIG) has reported on claims found in shredders in several cities. VAOIG has found problems in handling of mail and processing compensation/ pension claims continues to be a serious and on going management challenge for the Department.
In 2009, Rep. Bob Filner, House Veterans’ Affairs Committee Chairman, said that 41 0f 57 VA regional offices had crucial documents in the shredding bin. In addition to the shredding of documents, two VA attorneys were convicted for destroying and removing documents from veteran’s files. Medical records for soldiers from Operation Desert Shield/Desert Storm were destroyed because there was no room to ship them back to the States- contrary to Army regulations governing the preservation of wartime records.
These are just a handful of wide spread activities that have led to unjust denials of claims and dead end appeals that veterans are forced to fight for years.
With the VA’s backlog of claims at one million, many veterans are losing jobs, homes and families as they fight their way through a system that remains hostile. Many die from their illnesses during their fight for benefits, and over 120 veterans each week take their own lives. The motto, “Deny, Deny, Deny and Wait For Them To Die” has resonated across hundreds of veteran websites in recent years.
Marian in Oceanport, NJ said her husband, Frederick, was drafted into WWII and spent three years in the South Pacific. He came home with malaria. Marian recalled, “After months in Army hospitals, he got a medical discharge that came with a small disability compensation. Even though he was too sick to get a decent job, his small compensation was cut down each year until he got nothing. The real kicker was that the malaria came with very high fevers, and we were unable to have children.”
Frederick worked until age 84. In early 2010, Frederick became eligible for a pension but died before he could collect any of it. Marian still waits for her widow’s pension she applied for. She is 85 and uncertain if she will ever see a check.
Chauncey in New York was diagnosed with Angina Pectoris, Hypertension, Left Ventricular Hypertrophy and Cardiomegaly- heart issues that are especially dangerous when his diagnosis of Post Traumatic Stress Disorder (PTSD) is added. His illnesses are service related.
Chauncey said, “It qualifies me for Special Monthly Compensation because PTSD is rated at 100% and any other secondary illness/illnesses or injury/injuries rated at 60% makes me eligible for Special Monthly Compensation retroactively due to direct service.”
Chauncey’s doctor, Robin Tassinari, MD Professor of Psychiatry Professor of Internal Medicine confirmed the relationship between Chauncey’s PTSD diagnosis and his current heart disease. In part, Tassinari wrote, “PTSD most definitely affects his multiple cardiac conditions. The connection between PTSD and heart (and other organ) disease has been confirmed by several studies.”
Chauncey claims his medical files have been mishandled, documents have been lost and shredded and he has fought for 39 years without any success to obtain his benefits.
Sue, in Virginia, has been treated at VA hospitals for 39 years yet she has been denied disability payments. Sue says, “The VA Raters have made a complete and utter mess of my case so anything that is published by the courts is wholly denied as true by me. The courts have only spoken on the trashed and falsified version of my case by other VA Raters.”
She suffers from asthma, has had a premature hysterectomy at age 38, fibromyalgia, Arm arthritis- a secondary condition to fibromyalgia, chloracne- a verified PCB toxic exposure skin causation for which she underwent surgery for in 1972, just days after her discharge.
Sue has suffered from gastrointestinal disease for 20 years until doctors found a 100% obstruction. “I spent 2 months in the VA Hospital Critical Care Unit (CCU) and had life threatening abdominal surgery. I disabled out at the age of 41 over this,” she said.
In March 2009, Dr. James Holland pled guilty to a misdemeanor charge for his part in failing to protect his patients from a researcher who falsified medical records to enroll veterans in drug studies.
Federal prosecutors accused Holland of pushing many veterans into drug studies and ignoring an enormous amount of fraud on his watch as medical records were forged in an effort to qualify vets for drug experiments.
Don, in New York, was a patient of Hollands. During a conversation with a staff employee at the VAMC in Albany, he was told she had a strong belief that most of Holland's medical treatment records were either destroyed by Holland or by senior management at the VA.
Don’s spinal injuries are attributed to a HALO (High Altitude-Low Opening) jump in Indonesia where weather conditions placed them in a dangerous situation. Don remembers, “We were blown off the LZ (landing zone) and struck several large tree branches. I knew I had been injured (I experienced numbness in my legs, moderate pain in the lower spine, and difficulty walking).”
Don has since had four surgeries on his spine. Then in 1997 he was diagnosed, with a rare form of liver cancer (Hepatocellular/ Fibrolamellar Carcinoma), most prevalent in Southeast Asia. Don noted that less than 1% of Americans are diagnosed with this cancer.
He said, “I underwent surgical resection of the diseased part of my liver at Massachusetts General Hospital in Boston, and then underwent chemotherapy for about 5-6 months.”
Over the past two years his spinal condition has worsened at all three levels- lumbar, thoracic and cervical and he now has severe degenerative spinal stenosis. Don has been fighting for an increase of his benefits from 30% for 3 decades.
In May 1994 – Senator John D. Rockefeller testified before the Senate Committee on Veteran's Affairs. In his testimony, he revealed shocking news about vaccines and drugs given to soldiers- many who have since died.
He said, “The use of investigational drugs in the Persian Gulf is especially troublesome. The Pentagon threw caution to the winds, ignoring all warnings of potential harm, and gave these drugs to hundreds of thousands of soldiers with virtually no warnings and no safeguards. If that wasn't bad enough, they administered these drugs and vaccines in such a way that there is a very good chance they wouldn't have even worked for the intended purpose. They would not have protected most soldiers from chemical or biological warfare.”
Todd from Tennessee, age 45, served with the 515th Infantry Division in Germany in 1991. Todd’s illness is terminal because of vaccinations for anthrax he was ordered to take- or face a court martial. Several of the men Todd served with who took vaccinations have since died.
For over 10 years Todd has suffered from systolic congestive heart failure, type 2 diabetes, pulmonary hypertension, obstructed sleep apnea, non ischemic dilated cardiomyopathy, unexplained syncopal episodes, hearing loss, fibromyalgia, depression, anxiety, chronic lung disease, and short term memory loss. He has a history of pulmonary embolisms and a pacemaker, which prohibits other diagnoses that require use of an MRI. He has fought for over eight years for benefits and has never received them.
Inspire of her 39 year long ordeal with the VA, Sue has spent the past 7 years working with Congressional leaders to pass H.R. 2032 that would clean up toxic waste sites in the U.S., most notably Fort McClellan in Alabama.
She has been an avid activist for veteran’s rights and mentioned a meeting she attended in 2007 where Dr. Lonnie Bristow, former head of the American Medical Association and a Navy veteran, was brought in by the Institute of Medicine (IOM) to document and publish the VA disability codified rating tables. The IOM concluded that since the 1940’s the VA had NOT been updating its disability medical condition profiles (which are codified).
Sue remarked, “Anybody with an I.Q. over "3" knows what the implications are of this whole thing. The IOM was saying that the VA agency had been operating for entire decades in a mode of outright medical malpractice in most already-rated disability cases of veterans. It also means that those denied their cases under the obsolete codified tables, should have been REWORKED mandatorily by the VA and applied to the new updated profile standards. None of this was ever done.”
The VA continually rejects implementation of regulations that are veteran friendly. Claims processors in all 57 regional offices are poorly trained and none of the top personnel at the VA have been replaced despite overwhelming evidence of poor performance.
Paul Leaf, an attorney for Kirkland & Ellis LLP in Los Angeles represents a group of Ohio claims processors in an upcoming arbitration demanding, among other things, better training. Leaf said, “Proper training is crucial because claims processors must understand complex legal and medical criteria to accurately adjudicate disability claims.
“Recently, however, only one of the VA’s 57 regional offices provided all nationally mandated training to its claims processors. My clients, many of whom are disabled veterans, realize that proper training will help them work faster while committing fewer errors.”
Leaf said the VA continually delays this arbitration leaving 3000 veterans each year to die while their disability claims are pending.
Tags: veterans, veterans rights, PTSD, VA, Veterans Affairs, Veterans United for Truth, Iraq war, World War II, Viet Nam War, Judge Stephen Reinhardt, 9th Circuit Court, life or death, Operation Desert Shield, Desert Storm
Vol 9 Issue 63
Pub: Aug 9, 2011