Appellate Court Rules Poor VA Mental-Health Care for Vets Is Unconstitutional

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Matthew and April Magdzas walk with their daughter Lila on Park Point Beach in Duluth, Minn., on Aug. 14, 2010, three days before he took all their lives despite frequent VA care / Courtesy of the family

The wars in Afghanistan and Iraq potentially got a lot more costly Tuesday. That’s because a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco has concluded that the Department of Veterans Affairs’ treatment of mentally-ailing vets is so poor it is unconstitutional.

“Among other issues, Veterans ask us to decide whether these delays violate veterans’ due process rights to receive the care and benefits they are guaranteed by statute for harms and injuries sustained while serving our country,” the three-panel judge ruled unanimously. “We conclude that they do.”

It is a far-reaching decision that could prove exceptionally costly for the country, if the plaintiffs — a pair of veterans’ groups — and the VA can’t come to an agreement. The panel ordered a federal district judge — who had tossed the lawsuit out in 2008 — to work with both sides and try to hammer out a new mental-health treatment plan.

The plaintiffs are Veterans for Common Sense, in Washington, D.C., and Veterans United for Truth, based in California. The three-judge panel included Chief Judge Alex Kozinski, appointed to the bench by President Reagan, and a pair of judges — Procter Hug Jr. and Stephen Reinhardt — appointed by President Carter. Reinhardt wrote the toughly-worded decision, which was hailed by veterans. “This decision hopefully will serve as a model for veterans in the future, and as a testament to the bond of faith between our citizens and the defenders of our freedom,” said Gordon Erspamer, who argued the case before the panel on behalf of the veterans’ groups. The VA and Justice Department had no immediate comment.

The jurists went resolutely through the evidence and said they could reach no other decision. About five of every 18 veterans who kill themselves each day are under the VA’s care, the court said. “Although the VA is obligated to provide veterans mental health services, many veterans with severe depression or post-traumatic stress disorder (`PTSD’) are forced to wait weeks for mental health referrals and are given no opportunity to request or demonstrate their need for expedited care,” the decision said. “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.”

The sad fact is that even with VA care veterans can slip through the cracks. We highlighted that in April in a tough story about Matthew Magdzas, a Superior, Wis., National Guardsman who killed himself — and his pregnant wife and baby daughter — last August after 10 visits with the VA in the two weeks before they died. One thing I have gleaned from reporting on the mental-health woes of returning troops is that sometimes treatment is as much art as science. Different therapies, in a variety of combinations, work in different ways on different veterans. Sometimes, nothing seems to work. No court ruling will change that.

The judges said they had to step in to guarantee the rights that both the President and the Congress are responsible for providing. “We willingly acknowledge that, in theory, the political branches of our government are better positioned than are the courts to design the procedures necessary to save veterans’ lives and to fulfill our country’s obligation to care for those who have protected us,” they said. “But that is only so if those governmental institutions are willing to do their job.”

The court’s conclusion at the end of its 104-page decision is blunt:

The United States Constitution confers upon veterans and their surviving relatives a right to the effective provision of mental health care and to the just and timely adjudication of their claims for health care and service-connected death and disability benefits…their entitlements to the provision of health care and to veterans’ benefits are property interests protected by the Due Process Clause of the Fifth Amendment. The deprivation of those property interests by delaying their provision, without justification and without any procedure to expedite, violates veterans’ constitutional rights. Because neither Congress nor the Executive has corrected the behavior that yields these constitutional violations, the courts must provide the plaintiffs with a remedy.

But the federal judiciary doesn’t have to pay the bills. As someone who has covered the mental ills of U.S. vets since 9/11, the court has stepped up to the plate in an admirable way. There’s just one problem: the nation can’t afford to make whole the veterans whose brains and minds have been bruised and mashed by these wars. The repeated deployments have taken a toll that can never been fixed, no matter how much money is thrown at it. But such care can be dramatically improved.

This, of course, is the downside of the “long war” advocates of the current U.S. strategy have been pushing since 9/11. The weight of the war has rested on the narrow shoulders of the 1 percent of the nation with loved ones actually fighting it. Never have so few fought for so long, on behalf of so many who were asked to do so little in return. Part of the strong support for soldiers’ sacrifices is rooted in the guilt that comes from knowing someone else is doing your dirty work — a problem compounded when the war is fought with borrowed money as federal taxes are cut. “Wars, including wars of choice, have many costs,” the judges noted. “Affording our veterans their constitutional rights is a primary one.”