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A class action that seeks to reform “unconscionable delays” and complex procedures for returning Gulf War veterans seeking mental health benefits amounts to a frontal assault on the constitutionality of the Veterans Judicial Review Act. The lawsuit, filed in federal court in San Francisco July 23, accuses the Department of Veterans Affairs of “a system-wide pattern of abusive and illegal administrative practices” including premature and intentional denial of claims. The suit, Veterans for Common Sense v. Nicholson, C07-3758SC, centers of the disability claims related to post-traumatic stress disorder and estimates the class to be as many as 300,000 to 800,000 veterans from both Gulf wars. PTSD is the most common mental health disability of combat veterans and can include flashbacks, nightmares and other symptoms, and may result in job loss, homelessness, divorce and suicide. If the system is not reformed, appeals from denied claims could swamp the Court of Appeals for the Federal Circuit over the next four years, according to Gordon Erspamer, a Morrison & Foerster attorney in San Francisco, representing the veterans, along with Disability Rights Advocates, a public interest law firm in Berkeley. “The VA has admitted it is not equipped to handle the claims of returning veterans,” said Erspamer, who 20 years ago unsuccessfully challenged a bar to veterans using lawyers to seek compensation for exposure to radiation during and after World War II, NARS v. Walters, 473 U.S. 305. “This is not partisan or part of any agenda about the war, it is purely about veterans and getting them health care,” he said. In a prepared statement, the VA responded, “The Department of Veterans Affairs is committed to meeting the special needs of our latest generation of heroes and it would be inappropriate to comment directly upon a potential or pending lawsuit. Through outreach efforts, the VA ensures returning Global War on Terror service members have access to the widely recognized quality health care they have earned including services such as prosthetics or mental health care. VA has also given priority handling to their monetary disability benefit claims.” The lawsuit asks the court to declare the VA unconstitutionally denied veterans due process rights, denied access to courts and that the VA claims processing program violates the Rehabilitation Act of 1973. The suit also asks to enjoin the VA from further unconstitutional conduct. Paul Sullivan, executive director of Veterans for Common Sense said, “Instead of hiring more doctors and claims processors, VA instituted new policies that block veterans’ access to prompt mental health care.” Once a disability claims is filed, a denial can be appealed to three-judge panels on the U.S. Court of Appeals for Veterans Claims and from there to the Federal Circuit and ultimately the Supreme Court. But the backlog of appeals in the Veterans Claims court is so great the court eliminated three-judge panels and allows a single judge to rule. It is considering adopting a practice of allowing decisions without explanation of the rationale, the suit states. The suit was assigned to U.S. District Judge Sam Conti, a conservative Republican appointee who began his tenure on the bench during the era hundreds of Vietnam War-era draftees were charged criminally as draft resisters.

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