Bob Egelko / Chronicle – 2007-12-16 23:28:40

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/12/15/BA56TUU96.DTL

SAN FRANCISCO (December 15, 2007) — The government asked a San Francisco federal judge on Friday to dismiss a high-profile lawsuit challenging the system of treatment and benefits for returning combat veterans.

The government’s lawyers argued that civil courts have no authority over the Department of Veterans Affairs’ medical decisions or how it handles grievances and claims.

“If plaintiffs are not happy with the way the system is currently working, their remedy is to take it up with Congress” or with the veterans department, Justice Department attorney Daniel Bensing told U.S. District Judge Samuel Conti.

He said that in 1988, Congress created a system of reviewing veterans’ claims and it can’t be second-guessed by regular courts. It was the first hearing on the nationwide lawsuit that is being closely watched by veterans, their families and advocacy groups.

The suit seeks a judicial finding that the VA’s system of handling claims and appeals violates veterans’ rights. The plaintiffs also want court orders requiring the department to provide immediate medical and psychological help to returning troops and to screen them for risk of stress disorders and suicide.

Gordon Erspamer, a lawyer for veterans’ advocates, argued Friday that the system established under the 1988 law is rife with constitutional violations that federal courts are competent to judge. Wounded veterans, he said, are arbitrarily denied care and benefits, are forced to wait months for vital treatment and years for benefits, have no access to lawyers or potential witnesses, and have little recourse when their claims are rejected.

Under the current procedures, Erspamer said, the government “can deny health care to veterans coming back from Iraq and Afghanistan with impunity. … If this court dismisses this case, there is no way that these claims will ever be adjudicated.”

Conti, a World War II veteran and a judicial conservative during his 37 years on the bench, raised questions about the courts’ authority over the dispute but did not say how he would rule on the government’s dismissal motion.

The suit was filed in July by two organizations – Veterans for Common Sense and Veterans United for Truth – as a proposed class action on behalf of 320,000 to 800,000 veterans, or their survivors, claiming service-connected deaths and disabilities.

They focused on claims of post-traumatic stress disorder, increasingly common among returning troops. A Pentagon study group reported in June that about 84,000 veterans, more than one-third of those who sought care from the VA from 2002 through 2006, had been diagnosed with post-traumatic stress or another mental disorder.

The Pentagon group also found that the system was understaffed, prompting the VA to announce staffing increases in July. The suit said the department has a backlog of more than 600,000 disability claims.

Veterans’ advocates say the VA pressures stressed-out soldiers to acknowledge pre-existing “personality disorders” that gain them a speedy discharge while forfeiting future disability benefits. Erspamer said improper delays and denials of treatment and benefits have contributed to an “epidemic of suicides.”

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