Unreasonable Delay at the VA: Why Federal District Courts Should Intervene and Remedy Five-Year Delays in Veterans' Mental-Health Benefits Appeals

• Author: Jacob B. Natwick
• Position: J.D. Candidate, The University of Iowa College of Law, 2010; B.A., University of Minnesota, 2007
• Pages: 03

J.D. Candidate, The University of Iowa College of Law, 2010; B.A., University of Minnesota, 2007. I would like to thank my wife, Tova, for her constant encouragement; my parents, Brian and Julie, and siblings, Joe and Mari, for their love and support; and the editors and writers of Volumes 94 and 95 for all of their hard work on this Note.

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I Introduction

Sergeant Juan Jimenez served the United States in Iraq and held one of the most dangerous jobs in the war zone, escorting high-ranking officials through the streets of Baghdad.¹ He returned to the United States, having earned two Purple Hearts, with shrapnel lodged in his right arm.² In spite of his distinguished service in the most dangerous of circumstances, sergeant Jimenez has been unable to prove that his nightmares, flashbacks, and acid reflux are service-connected and has, therefore, been waiting three-and-a-half years for the mental-health care he deserves.³ Another distinguished veteran, Specialist Jon Town, received a Purple Heart for his service, and when he returned to the united states, the Veterans Benefits Administration ("VBA") denied him benefits for Posttraumatic Stress Disorder ("PTSD"); his symptoms included headaches and hearing loss resulting from his close proximity to a rocket that knocked him unconscious, but he received no health benefits because his doctor determined those conditions were pre-existing.⁴ For Specialist Town to receive the care he deserved, it took the intervention of an episode of Law & Order, the help of musician Dave Matthews, and, finally, an article in his local newspaper.⁵

A serious problem has developed within the Department of Veterans Affairs ("VA") as a result of modern warfare and the mental-health problems with which veterans are returning from Iraq and Afghanistan. An increasing number of veterans face PTSD and major depression and require benefits to assist them in getting treatment. The VBA, however, has been unable to assist adequately veterans seeking benefits for these mental-health problems. The most striking example of this failure is found in the benefits-appeals process, under which veterans must wait an average of five years for a decision on their appeal. The majority of appeals result in decisions favorable to veterans, but, by then, it is often too late to remedy the damage resulting from PTSD and major depression.

This Note is separated into three substantive parts. Part II introduces the problem of PTSD among returning combat veterans and the process they must use to receive benefits. Part III provides background information on the statutes pertaining to judicial review of VA actions and of agencies' actions in general. Part III also introduces a standard for judicial review of unreasonable delays of agency actions and presents accompanying case law. Part IV describes the failures of the VBA and the courts to remedy the Page 726 problem of unreasonable delays in mental-health benefits adjudications. Part IV then analyzes Veterans for Common Sense v. Peake, which recently addressed the issue of delays in mental-health benefits appeals, and concludes that the holding of the case was based on a flawed application of the law and inadequate attention to the problems facing veterans. This Note concludes that either district courts of general jurisdiction or Congress should step in and provide a remedy where the VA has shown that it is unable to do so on its own.

II Background

Veterans returning from combat in Iraq and Afghanistan face many challenges when readjusting to life in civilian society. Many veterans return with physical wounds, and a growing number of veterans face serious mental-health problems. Both the veterans and their loved ones must learn to live with these injuries and mental-health disorders. This Part will discuss the problems facing combat veterans and their families, as well as the process through which veterans may try to obtain health benefits.

A The Rise And Consequences Of Posttraumatic Stress Disorder On Veterans Returning From Combat

Since October 2001, the United States has sent more than 1.6 million men and women into combat in Iraq and Afghanistan.⁶ A recent study conducted by the RAND Center for Military Research ("RAND Study") found that 18.3% of returning veterans have PTSD or major depression.⁷That means that approximately 300,000 combat veterans must deal with severe mental-health problems when they return from Iraq or Afghanistan.⁸Factoring in other serious mental-health disorders, "[u]pward of 26 percent of returning troops may have mental health conditions."⁹ Perhaps more Page 727 alarming is the rate at which mental-health diagnoses are increasing as compared to rates for other medical conditions.¹⁰

The problems resulting from PTSD¹¹ begin during combat and have very serious negative impacts on soldiers-not only on those who have returned from combat, but also on those in active duty.¹² For example, the Fort Carson Army Base currently has about 17,500 assigned soldiers and has sent 26,000 of its soldiers into combat in Iraq since the beginning of the war.¹³ At the Base, 1703 soldiers have been treated for PTSD since 2003.¹⁴This number represents a much smaller percentage of soldiers than the RAND Study determined suffer from PTSD,¹⁵ but this can perhaps be explained by the stigma facing veterans with PTSD.¹⁶ Not only is this mental-health disorder very serious and life-threatening, but many soldiers with PTSD feel embarrassed by the condition.¹⁷

The consequences of PTSD and other mental-health disorders are dire, both in the short term and the long term. Suicide is perhaps the most well-known and widely documented consequence of PTSD and other mental-health disorders.¹⁸ Among persons who have served in the armed forces, those with combat experience demonstrate an increased incidence of suicide.¹⁹ In 2006, ninety-seven soldiers on active Army duty committed suicide, and two-thirds of these soldiers took at least one tour of duty in either Iraq or Afghanistan.²⁰ According to one study, suicide rates of veterans are approximately 3.2 times higher than in the general Page 728 population.²¹ This can be attributed, in large part, to the high rates of PTSD among combat veterans.²² For soldiers with depression and a history of depressive episodes, the risk of suicide attempts is eleven times greater than for the general population.²³

There are other serious health consequences for veterans resulting from increased rates of PTSD. For example, not only do persons with PTSD face a higher risk of suicide, they also face a higher risk of death due to cardiovascular disease.²⁴ Along with these problems, PTSD often leads to or exacerbates substance abuse.²⁵ A study of Vietnam combat veterans found that seventy-five percent of soldiers with PTSD had substance abuse or other dependence problems.²⁶ These substance abuse problems primarily take the form of alcohol abuse but often occur along with other forms of substance abuse, such as drug abuse.²⁷

Veterans with PTSD are also less likely to find and retain employment upon their return to the United States.²⁸ Marriages and intimate relationships are much more likely to suffer when a veteran returns from combat with a mental-health disorder.²⁹ For veterans with families and children, PTSD can result in long-term damage to the development of their children.³⁰ It is clear that veterans returning from combat with PTSD and other mental-health disorders face very serious challenges and require careful attention from mental-health professionals. Page 729

B The Adjudica tion Process for Veterans ' Benefits

In order to ensure the procurement of health benefits for treatment of PTSD and depression, a veteran must go through several complex and prolonged VA processes. Most benefits decisions fall under the service-connected disability and death compensation ("SCDDC") benefits category, which includes mental-health benefits for treating PTSD.³¹ First, doctors at local VA hospitals make initial determinations about whether benefits are necessary.³² Following the doctor's determination, the veteran may file a Notice of Disagreement ("NOD").³³ The NOD allows the veteran to appeal the doctor's determination to the Board of Veterans' Appeals ("BVA").³⁴The BVA then issues a decision on the initial benefits determination.³⁵

Following an adverse decision by the BVA, the veteran may choose to appeal the benefits determination to the U.S. Court of Appeals for Veterans' Claims ("CAVC"), an Article I court.³⁶ A veteran can pursue further appellate review to the Federal Circuit Court of Appeals and ultimately to the U.S. Supreme Court.³⁷ Most cases do not reach beyond the BVA level because many veterans give up their claims after long delays, and those veterans who choose to appeal the decision further face many obstacles and even longer delays.³⁸

III...