Veteran's Mental Health and PTSD Lawsuites, part 2

Kimberly Tyler Health Guide
  • As mentioned previously, the class action lawsuit filed by the two non-profit groups (the plaintiffs) Veterans for Common Sense and Veterans United For Truth, Inc. is not monetarily based. Instead, the lawsuit is for declaratory and injunctive relief under the US Constitution and Rehabilitation Act (1973).[1] The Veteran's Judicial Review Act (i.e., how disability claims are handled and decided) and the related administrative polices and procedures are also objected to in the class action lawsuit.[2]

    (http://www.veteransforcommonsense.org/ and http://www.vuft.org/)


    The intention of the suit is as equally powerful as its magnitude for creating change. Understanding the legal terminology used by the law firm of Morrison & Foerster, LLC and the plaintiffs clarifies the outcomes desired as well as the reasons for the class action lawsuit.

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    A claim for declaratory judgment is used in civil cases for the purpose of stating publicly the rights, duties or obligations of an agency.[3] For purposes of this lawsuit, a declaratory judgment is sought to protect and uphold the responsibilities (rights, duties and obligations to veterans) by the Department of Veteran's Affairs for disability claims for veterans. A declaratory judgment is binding, meaning that the Department of Veteran's Affairs is then required to fulfill such rights, duties or obligations to veterans.


    The request for a declaratory judgment goes to the time delay for approval for claims submitted by veterans for PTSD as well as the massive amount of claims either pending approval or rejected. The delay in disability claim approval results in the loss of medical treatment and disability benefits veterans are entitled to. In effect, the declaratory aspect is forcing the hand of the Department of Veteran's Affairs to "declare" the rights afforded to veterans for disability status and to resolve the issues of timely claim determinations, accurate claim determinations, and to repair the current system in place to rectify the rights, duties and obligations of the agency to the veterans it serves.


    According to the British Broadcasting Agency (BBC), the length of time for PTSD claim paperwork to be reviewed is at least six months; if denied and an appeal is needed, it could be up to two years without treatment or benefits for lost work time. According to the documentation and statistics stated in the civil suit filed by Morrison & Foerster, LLC, this could easily average out further to over eight and a half years, considering the way in which the Bureau of Veteran's Affairs is handling the amount of claims received, the amount of claims denied, and the amount of claims circling back through the system for "further investigation." Sometimes the delay runs up to ten to twelve years.


    As for injunctive relief, this is a request for an order of the court to tell a party to do or not do a certain action rather than offering monetary damages.[4] An injunction is a different legal course of action wherein monetary damages would not resolve the situation at hand. Injunctive relief is where the term equitable remedy comes into play. Equitable remedy refers to a form of compensation more valuable than money (in this case treatment, access to health care, due process of disability claims and rights afforded to veterans). In this suit, equitable remedy is what is sought; receiving equitable remedy (or corrective action to drastically improve the current processes in place) is the purpose of filing this injunctive relief claim.


  • Another variant with injunctions is there is no jury involved in the determination. Equitable remedies can only be determined by a judge. In this case, the judge would determine what and how to uphold the laws already in place (that are not being followed) by enacting new laws and procedures. For example, certain concerns in question are already "guaranteed" by the Department of Veteran's Affairs: they are simply either not done, not done in a timely manner or not done without errors or omissions.


    The equitable remedies sought in this lawsuit would compel the Department of Veteran's Affairs to follow the laws already in place for due process of disability claim filings as well as to provide a new psychiatric evaluation model for PTSD according to the DSM-IV-TR-6. Equitable remedy would also eliminate the current exclusionary diagnosis determination of "personality disorder" discharges (which members of the armed forces have been offered for their symptoms of service-related PTSD).[5] A "personality disorder" discharge excludes a veteran from a determination of PTSD as the diagnosis of "personality disorder" is considered a pre-existing condition under the Department of Veteran's Affairs and is not covered. Many veterans signed off on "personality disorder" for their post-traumatic symptoms, when indeed this was not the case, and unbeknownst to them, they were automatically disqualified for veteran's health care benefits.[6] "More than 22,500 soldiers across the armed forces have been suspiciously diagnosed and discharged with "personality disorder" in the last six years, condemning them to a lifetime of disability without compensation or access to VA medical care."[7]

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    The injunction also refers to changing the current ban on lawyers (known as "Fee Prohibition"), which prevents the assistance of a lawyer when filing or appearing before an administrative law judge for a disability claim. Discovery of evidence is therefore prevented as well as a fair and full account of the file/claim in question. What occurs, according to the civil suit filed by Morrison & Foerster, LLC, is that the veteran is left to fend for him or herself to defend/argue/convince the judge of the facts present or not present in their claim file.[8] As many of us are aware, lawyers are allowed for Federal Disability Claims for Social Security Disability and it is most often the involvement of a lawyer that results in a proper disability claim judgment.


    This then leads to why the suit references the Rehabilitation Act of 1973 versus the American with Disabilities Act of 1990. The Rehabilitation Act of 1973 specifically refers to and prohibits disability discrimination (including access to health, welfare and social services) by federal agencies, federal contractors and other recipients of federal financial assistance.[9] The Rehabilitation Act also allows private individuals to file under this Act in the courts against federal agencies, employers or recipients of federal assistance.[10]


  • The Rehabilitation Act preceded the Americans with Disabilities Act (ADA) by 17 years. Prior to the ADA, Section 504 of The Rehabilitation Act was the front line of defense against discrimination for disability by federal agencies and their affiliates. The ADA does not provide protection rights against discriminatory action by the federal government; hence, the Rehabilitation Act is the referenced cause of action being utilized here for disability discrimination by the Department of Veteran's Affairs and their related agencies.

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    The ramifications of this lawsuit are imperative to the mental health care provided to veterans. The full class action civil suit claim is located on the web and is full of extensive and thorough statistics and information. (http://www.mofo.com/docs/pdf/PTSD070723.pdf) There will be more to come on this issue-explaining out the bare bones of this class action suit is only the tip of the iceberg.





    [1] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California

    [2] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California

    [3] http://www.wikipedia/.com

    [4] http://www.wikipedia/.com


    [5] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California.

    [6] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California.

    [7] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California.

    [8] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California.

    [9] http://law.jrank.org/pages/6146/Disability-Discrimination-Rehabilitation-Act-1973.html

    [10] http://law.jrank.org/pages/6146/Disability-Discrimination-Rehabilitation-Act-1973.html


Published On: August 08, 2007