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Veterans not entitled to mental health care, U.S. lawyers argue

Bob Egelko, Chronicle Staff Writer
Tuesday, February 5, 2008

Veterans have no legal right to specific types of medical care, the Bush
administration argues in a lawsuit accusing the government of illegally denying
mental health treatment to some troops returning from Iraq and Afghanistan.

The arguments, filed Wednesday in federal court in San Francisco, strike at the
heart of a lawsuit filed on behalf of veterans that claims the health care
system for returning troops provides little recourse when the government
rejects their medical claims.

The Department of Veterans Affairs is making progress in increasing its
staffing and screening veterans for combat-related stress, Justice Department
lawyers said. But their central argument is that Congress left decisions about
who should get health care, and what type of care, to the VA and not to
veterans or the courts.

A federal law providing five years of care for veterans from the date of their
discharge establishes "veterans' eligibility for health care, but it does not
create an entitlement to any particular medical service," government lawyers

They said the law entitles veterans only to "medical care which the secretary
(of Veterans Affairs) determines is needed, and only to the extent funds ...
are available."

The argument drew a sharp retort from a lawyer for advocacy groups that sued
the government in July. The suit is a proposed class action on behalf of
320,000 to 800,000 veterans or their survivors.

"Veterans need to know in this country that the government thinks all their
benefits are mere gratuities," attorney Gordon Erspamer said. "They're saying
it's completely discretionary, that even if Congress appropriates money for
veterans' health care, we can do anything we want with it."

The issue will be joined March 7 at a hearing before U.S. District Judge Samuel
Conti, who denied the administration's request last month to dismiss the suit.
While the case is pending, the plaintiffs want Conti to order the government to
provide immediate mental health treatment for veterans who say they are
thinking of killing themselves and to spend another $60 million on health care.

The suit accuses the VA of arbitrarily denying care and benefits to wounded
veterans, of forcing them to wait months for treatment and years for benefits,
and of failing to provide fair procedures for appealing decisions against them.

The plaintiffs say that the department has a backlog of more than 600,000
disability claims and that 120 veterans a week commit suicide.

In his Jan. 10 ruling that allowed the suit to proceed, Conti said federal law
entitles veterans to health care for a specific period after leaving the
service, rejecting the government's argument that it was required to provide
only as much care as the VA's budget allowed in a given year. A law that
President Bush signed last week extended the period from two to five years.

In its latest filing, however, the Justice Department reiterated that Congress
had intended "to authorize, but not require, medical care for veterans."

"This court should not interfere with the political branches' design, oversight
and modification of VA programs," the government lawyers argued.

They also said the VA "is making great progress in addressing the mental health
care needs of combat veterans." Among other things, they cited a law passed in
November that required the department to establish a suicide-prevention program
that includes making mental health care available around the clock.

The VA has hired nearly 3,800 mental health professionals in the last two years
and has at least one specialist in post-traumatic stress disorder at each of
its medical centers, the government said.

Since June, government lawyers said, the VA has had a policy that all veterans
who seek or are referred for mental health care should be screened within 24
hours, that those found to be at risk of suicide should be treated immediately,
and that others should be scheduled for full diagnosis and treatment planning
within two weeks. A new suicide-prevention hot line has been responsible for
"more than 380 rescues," the lawyers said.

Erspamer, the plaintiffs' lawyer, was unimpressed.

"Nowhere do I see any explanation of what kind of systems they have in place
that deal with suicidal veterans," he said. "There's no excuse for not spending
the money Congress told them to spend on mental health care and leaving $60
million on the table when people are going out and killing themselves."

E-mail Bob Egelko at .

This article appeared on page A - 8 of the San Francisco Chronicle