SAVING MONEY, NOT LIVES: WHY THE VA'S CLAIMS 
ADJUDICATION SYSTEM DENIES DUE PROCESS TO 

VETERANS WITH POST-TRAUMATIC STRESS DISORDER 
AND HOW THE VA CAN AVOID JUDICIAL INTERVENTION 

Contessa M. Wilson* 

I. INTRODUCTION ............................................................................... 157 
II. BACKGROUND ................................................................................ 161 

A. PTSD: Clinical Presentation, Short-term, and Long-term 
Effects ....................................................................................... 161 

B. VA Claims Adjudication System: an Overview ....................... l64 
III. ANALYSIS: FEDERAL DISTRICT COURTS DoHA VE THE POWER TO 

GRANT A REMEDY .......................................................................... 167 
A. Facial Constitutional Challenges to VA Allowed .................... 167 

1. Establishment of Standing ................................................. 167 
2. Establishment of Waiver of Sovereign Immunity by 

the VA ................................................................................ 168 
a. Final agency action .................................................... 170 
b. No other alternate adequate remedy ........................... 171 

B. Applicable Law: Administrative Procedure Act (APA), 
Congressional Statutes, Fifth Amendment to the United States 
Constitution .............................................................................. 171 

C. Application ofTRAC Factor Analysis and Due Process Analysis 
to the VA 's Claims Adjudication Process ................................ 17 4 
1. TRAC Factor Analysis ....................................................... 174 
2. Due Process Analysis ........................................................ 178 

IV. RECOMMENDATIONS ...................................................................... 183 
V. CONCLUSION .................................................................................. 186 

l. INTRODUCTION 

To care for him who shall have borne the battle and for his widow and 
his orphan: this is the motto ofthe Department of Veterans' Affairs (VA). 
Frustrated by delays in health care, two veterans' advocacy groups, Veter­
ans for Common Sense and Veterans United for Truth, questioned the VA's 
commitment to their motto and filed a lawsuit in federal court seeking 

* J.D. Candidate, 2010, Indiana University School of Law- Indianapolis; PhannD., 
2002, University of Shenandoah, Bernard J. Dunn School of Pharmacy; M.S.M., 1994, Pur­
due University, Krannert School of Business; B.S.Pharm., 1991, Purdue University School 
of Pharmacy and Pharmaceutical Sciences. 

Disclaimer: Ms. Wilson held a position as a staff pharmacist for the Veterans 
Administration. The views expressed here are solely those of the author and do not represent 
any of the institutions with which she is affiliated, now or in the past. 



158 INDIANA HEALTH LAW REVIEW [Vol. 7:157 

change in the VA's health care system. The advocacy groups charged that 
the VA has failed to provide statutorily-mandated benefits to thousands of 
veterans, specifically those seeking medical treatment or disability claims 
based on post-traumatic stress disorder {PTSD). Seeking declaratory and 
injunctive relief, and not monetary damages, the advocacy groups painted a 
disturbing picture of a VA bureaucracy that, instead of living up to its mot­
to, abandons veterans, which ultimately leads to broken -lives, homeless­
ness, and staggering social costs. 1 

The organizations pointed to documents and studies describing layers 
of failure on the part of the VA to address not only the mental health needs 
of veterans returning from foreign wars, but the monetary benefits due these 
veterans as well.2 These statistics focused specifically on veterans returning 
from Iraq and Afghanistan with symptoms of PTSD.3 The organizations' 
lawsuit focused primarily on the following issues: 1) "[t]he widespread 
breakdown of the [VA 's] adjudication and health care systems for veterans 
experiencing PSTD'74, 2) "[t]he prolonged administrative delays in 
processing PTSD claims, at both the regional office and appellate levels"5, 

and 3) "[a] variety of statutory and regulatory impediments to a veteran's 
ability to collect PTSD compensation, [including] the inability to obtain 
discovery, ·the absence of subpoena power for documents and witnesses, 
and the inability to hire a lawyer to help out at the regional office level .'oli 

PTSD is one of the most common diagnoses of returning service 
members from Iraq and Afghanistan, with nearly nineteen percent reporting 
symptoms. 7 The prevalence of PTSD in veterans returning from war is 
dratnatic when compared to the prevalence of PTSD in the general public, 
which is only approximately four percent. 8 Additional studies indicate that 
the suicide rate among veterans is approximately 3.2 times higher than that 

, 1. See generally Veterans for Common Sense v. Peake, 563 F. Supp. 2d 1049 (N.D. 
CaL 2008). 

· 2. See, e.g., Peake, 563 F. Supp. 2d at 1049; INVIsmLE WoUNDs OF WAR: 
PSYCHOLOGICAL AND COGNITIVE INJURIES, THEIR CONSEQUENCES, AND SERVICES TO ASSIST 
REcoVERY (Terri Tanielian & Lisa H. Jaycox eds., Rand Center for Military Health Policy 
Research, 2008) [hereinafter INVISIBLE WoUNDS OF WAR]; Karen H. Seal et al., Bringing the 
War Back Home: Mental Health Disorders Among 103 788 US Veterans Returning from 
Iraq and Afghanistan Seen at Department of Veterans Affairs Facilities, 167 ARCH INTERN 
MED. 476 (2007). 

3. See generally Peake, 563 F. Supp. 2d at 1055 (outlining plaintiffs' argument seek­
ing injunctive and declaratory relief against the VA alleging that the procedures for obtain­
ing disability benefits violated veterans' rights). 

4. Veterans PTSD Class Action Homepage, http://www.veteransptsdclassaction.orgl 
index.html (last visited March 8, 2009) [hereinafter PTSD Homepage]. 

5. Id 
6. /d. 
7. Peake, 563 F. Supp. 2d at 1062, accord Seal et al.,supranote 2, at478. 
8. Guido R. Zanni, PhD, PTSD: Treating the Wounds We Do Not See, 14 PHARMACY 

TIMES 44, 44 (2008). 



2010] SAVING MONEY, NOT LIVES 159 

of the general population.9 Not surprising is the fact that PTSD is a signifi­
cant risk factor for suicide,10 leading to the conclusion that treating PTSD, 
and thus avoiding its long-term implications, would inevitably prove to be a 
cost-effective strategy: not only in dollars, but in human lives as well. 

Lack of access to statutorily-mandated health care and disability bene­
fits, however, is leading to serious long-term complications for veterans 
with PTSD, including a serious suicide epidemic. An adversarial claims 
adjudication process only serves to exacerbate the situation·11 Only months 
after the lawsuit was filed, the VA became aware, through an internal email, 
that eighteen veterans committed suicide each day and that the VA's own 
data demonstrated that four to five of the suicides were among those who 
were receiving care from the V A.12 

Another internal VA email, dated eight months after the lawsuit was 
filed, revealed that 12,000 veterans under VA care attempted suicide each 
year.13 The financial costs associated with mental health and cognitive 
conditions stemming from the conflicts in Mghanistan and Iraq are substan­
tial. Although confounded by a few uncertainties, the two-year costs for 
PTSD-related and major depression could range from $4.0 to $6.2 billion 
(in 2007 dollars).14 

Costs are being incurred in more than just dollars. In health terms, re­
search documents a relationship between PTSD and coronary heart disease 
("CHD"), 15 between PTSD and mortality, 16 and between PTSD and health­
compromising behaviors such as smoking, drug abuse, and alcohol abuse.17 

PTSD and its resultant complications can ultimately lead to suicide and its 
related costs. Veterans returning from Iraq and Afghanistan may, indeed, 
receive treatment from the VA after seeking it. The quality and continuity 
of the treatment, however, is often dependent upon whether the veteran 
lives near a VA facility that offers mental health care.18 "These shortfalls 
have reached a crisis point; with substance abuse, homelessness, family dis­
solution, and suicide at unacceptable levels."19 

Many veterans are totally or primarily dependent upon benefits re­
ceived based on their service. Service-connected ratings, known as service­
connected death and disability compensation ("SCDDC"), determine the 

9. Peake, 563 F. Supp. 2d at 1063. 
10. Kevin Caruso, PTSD and Suicide, http://www.suicide.org/ptsd-and-suicide.html 

(last visited March 8, 2009), accord Peake, 563 F. Supp. 2d at 1062. 
11. PTSD Homepage, supra note 4. 
12. Peake, 563 F. Supp. 2d at 1063. 
13. Id 
14. INvtsmLE WoUNDs OF WAR, supra note 2, at xxiii. 
15. /d.atl3l. 
16. /d. 
17. /d. at 134-36. 
18. Amy N. Fairweather, Compromised Care: The Limited Availability and Question­

able Quality of Health Care for Recent Veterans, ABA HUMAN RIGHTS, Spring 2008, at 4. 
19. Id. 



160 INDIANA HEALTH LAW REVIEW (Vol. 7:157 

monthly payment made to a veteran who has a disability for a disease or 
injury that was incurred or aggravated by service in the armed forces.20 

For those who cannot work [due to the incapacitating 
effects of PTSD], the difference [in a SCDDC rating] 
can be a lifetime of bare economic stability (with 
benefits topping out at about $2,500 per month for a 
single veteran with no dependants) or abject poverty 
(a 50 percent disability will net a veteran about $725 a 
month).21 

The VA not only has a statutory duty to allow veterans access to ap­
propriate health care and disability benefits, but a constitutional duty as 
well. And the burden to the VA of treating those veterans afllicted with 
PTSD is lower than the burden of allowing the disease to remain un­
treated.22 

In Veterans for Common Sense v. Peake, the court found that two vet­
erans' advocacy groups did have standing to bring their members' claims to 
the district court.23 Although the court held that the system established by 
Congress for adjudicating veterans' individual claims did not provide an 
adequate alternative remedy for plaintiffs' systemic facial constitutional 
challenges, the court found that plaintiffs' challenges failed for other rea­
sons, 'including failure to challenge a final agency action. '24 Additionally, 
the court held that the grievances of the plaintiffs were misdirected and that 
the remedies of the problems, deficiencies, delays, and inadequacies com- · 
plained of were not within the jurisdiction of the court. The court found no 
systemic violations system-wide that would have compelled district court 
intervention.25 

In light of the documented inadequacies of the V A's claims adjudica­
tion system and the harm it causes the veterans of our nation, this note will 
examine the decision of the Northern District of California federal court 
regarding the constitutional challenge of denial of due process. Specifical­
ly, this note will address why judicial intervention is not precluded, but will 
suggest how the VA can make necessary changes without such intervention. 
Part II of this note will discuss PTSD and its effects on veterans, and inevit­
ably, society. Part II will also provide an overview ofthe VA's claims ad-

20. See generally Compensation and Pension Benefits Page, U.S. Dep't of Veterans 
Affairs, http://www.vba.va.gov/bln/2l/index.htm (last visited March 8, 2009) (providing 
general information regarding SCDDC for veterans). 

21. Fairweather, supra note 18, at 4. 
22. See INvismLE WoUNDS OF WAR. supra note 2, at 439. 
23. Peake, 563 F. Supp. 2d at 1077. 
24. ld. at 1078. 
25. Id. at 1055. 



2010] SAVING MONEY, NOT LIVES 161 

judi cation system and the length of time it takes for veterans to receive their 
benefits. Part m will provide an analysis of why judicial intervention is not 
precluded from providing relief to the veterans' claims of denial of constitu­
tional due process. Facial constitutional challenges to the VA are allowed, 
not only through the Fifth Amendment, but also through the Administrative 
Procedure Act ("APA"). Finally, Part IV will examine recommendations as 
to how the VA can implement cost-effective changes that will immediately 
benefit veterans affected with PTSD, thus averting the proposed judicial 
intervention. 

ll.BACKGROUND 

A. PTSD: Clinical Presentation, Short-term, and Long-term Effects 

PTSD did not officially exist until 1980, when the American Psychia­
tric Association task force revised the Diagnostic and Statistical Manual of 
Mental Disorders ("DSM") and entered PTSD in the 1980 DSM-ID.26 

PTSD moved from being designated a "syndrome" to being designated a 
"disorder." A syndrome is defined as "a group of signs and symptoms that 
together are characteristic or indicative of a specific disease or other dis­
order.'m A disorder is an illness. "PTSD changed from being part of a col­
lective indicator to a singular illness, a significant medical distinction.'.28 

PTSD is described as occurring when the following 
criteria are met: 

A. The person has been exposed to a traumatic 
event in which both of the following were present: 
(1) the person experienced, witnessed, or was con­
fronted with an event or events that involved actual 
or threatened death or serious injury, or a threat to 
the physical integrity of self (i.e. combat, friendly 
fire, being mortared or rocketed, wounded, captured, 
driving a truck on a mined road, flying in a helicop­
ter that was shot at, jumping out of a helicopter into 
a hot LZ) or others (if you had a buddy who was 
wounded or lost squad members, family member, or 
seeing anyone who has recently been killed or in-

26. Carol Cruzan Morton, P'ISD: The Suffering Continues for Vets, Focus ONLINE, 
http://focus.hms.harvard.edu/2008/032108/public_health.shtml (last visited October 18, 
2008). 

27. MSN ENCARTA DICTIONARY, http://encarta.msn.com/dictionary_l86171 
7757/syndrome.html (last visited July 21, 2009). 

28. I.S. PARRISH, MILITARY VETERANS PTSD REFERENcE MANuAL 3 (Infinity Publish­
ing.com 2008) (200 I). 



162 INDIANA HEALTH LAW REVIEW 

jured such as being a . medic or nurse on a trauma 
ward, body bagging, seeing someone you didn't 
know killed; seeing kids, women or other Americans 
or civilians who had been killed, or wounded, etc.)[,] 
(2) the person's response involved intense fear, hel­
plessness or horror. 29 

B. The traumatic event is persistently re­
experienced in one (or more) of the following ways: 
(1) recurrent and intrusive distressing recollections 
of the event, including images, thoughts, or percep­
tions[;] (2) recurrent distressing dreams of the 
event[;] (3) acting or feeling as if the traumatic event 
were recurring (includes a sense of reliving the ex­
perience, illusions,. hallucinations, and dissociative 
flashback episodes, including those that occur on 
awakening or when intoxicated)[;] (4) intense psy­
chological distress at exposure to internal or external 
cues . that symbolize or resemble an aspect of the 
traumatic event[;] (5) physiological reactivity on ex­
posure to internal or external cues that symbolize or 
resemble an aspect of the traumatic event. 30 

C. Persistent avoidance of stimuli associated with 
the trauma and numbing of general responsiveness 
(not present before the trauma).31 

D. Persistent symptoms of increased arousal (not 
present before the trauma).32 

[Vol. 7:157 

29. Id (quoting, with references to children excluded, "from The Diagnostic and Sta­
tistical Manual of Mental Disorders. Fourth Edition (DSM-IV), Washington, D.C., American 
Psychiatric Association, 1994, section 309.81, beginning on page 427 with supplemental 
information, in parentheses . . . , from The Post-Traumatic Gazette, edited by Mrs. Patience 
Mason''). 

30. Id at 3-4. 
31. Id at 4 (going on to say that this is evidenced by at least three of the 

following: 
(1) efforts to avoid thoughts, feelings or conversations associated with 
the trauma ... [;] (2) efforts to avoid activities, places, or people that 
arouse recollections of the trauma ... [;] (3) inability to recall an impor­
tant aspect of the trauma ... [;] (4) markedly diminished interest or par­
ticipation in significant activities ... [;] (5) feelings of detachment or 
estrangement from others ... [;] (6) restricted range of affect ... [;] (7) 
sense of a foreshortened future ... ). 

32. Id at 4-5 (going on to say that this is evidenced by at least two of the 
following: 

(1) difficulty falling or staying asleep; (2) irritability or outbursts of an­
ger; (3) difficulty concentrating ... [;] (4) hypervigilance) always look­
ing for danger, worrying about people getting hurt, still looking for 
tripwires and sitting with your back to the wall, avoiding crowds, etc.); 



2010] SA VlNG MONEY, NOT LIVES 

E. Duration of the disturbance (symptoms in Crite­
ria B, C, and D) is more than [one] m:onth.33 

F. The disturbance causes clinically significant dis­
tress or impairment in social, occupational, or other 
important areas of functioning. 34 

163 

By simply reading the lengthy, complex criteria to diagnose PTSD, it is 
easy to conclude that diagnosing PTSD requires that veterans have access to 
qualified mental health professionals. Research has shown that the majority 
of persons "in whom PTSD develops meet the criteria for the diagnosis of 
this disorder within the first three months after the traumatic event. "35 It 
would seem, then, that veterans not only need access to qualified mental 
health professionals, but they need that access in a timely manner: within 
the first three months of experiencing the triggering traumatic event. 

Patients diagnosed with PTSD have to deal with both short-term and 
long-term effects. The brains of patients under the stress that accompanies 
PTSD might have a more difficult time healing, and there are major neuro­
biological consequences to PTSD.36 Some problems that PTSD patients 
experience include clear problems with attention, working memory, learn­
ing, and executive functioning. Insomnia, depression and irritability are 
other overlapping symptoms. 37 

Due to the nature of the symptoms experienced· by those diagnosed 
with PTSD, those affected tend to miss more days of work, report being less 
productive while at work, and are more likely to be unemployed. 38 In addi­
tion, "[p]sychiatric illnesses appear to predict homelessness.'o39 Further­
more, those affected with PTSD suffer in their interpersonal relationships, 
leading to disrupted marriages, interference with parenting, and ultimately 
problems can arise in the children of those affected with PTSD that "extend 
the costs of combat experiences across generations. "40 

No statement portrays the plight of the diagnosed PTSD patient better 
than the following: "The effects of a post-combat mental health [condition] 
can be compared to ripples spreading outward on a pond. But whereas rip­
ples diminish over time, the consequences of mental health and cognitive 
conditions may grow more severe, especially if left untreated."41 These are 

(5) exaggerated startle response (hit the dirt at the sound of a backfire, 
can't be touched when asleep, etc.). 

33. !d. at5. 
34. PARRISH, supra note 28, at 5. 
35. Charles W. Hoge et al., Combat Duty in Iraq and Afghanistan, Mental Health 

Problems, and Barriers to Care, 351 NEW ENG. J. MED. 13, 20 (2004) (citation omitted). 
36. Stephen Spotswood, Like PTSD/I'BI Symptoms Complicate Treatment, 44 U.S. 

MEDICINE, Sept. 2008, at 17. 
37. !d .. 
38. INvlsmLEWOUNDSOFWAR,supranote2,at 149. 
39. !d. 
40. !d. 
41. !d. 



164 INDIANA HEALTH LAW REVIEW [Vol. 7:157 

documented effects occurring in the diagnosed PTSD veteran. The problem 
is that many veterans do not even get the "benefit" of a diagnosis of PTSD, 
even when that diagnosis is clearly warranted. Without the diagnosis, there 
can be no treatment for these veterans. 

Although some have attempted to document the direct medical cost of 
treatment ofPTSD,42 direct medical costs of treatment represent only a frac­
tion of the total costs related to the injuries sustained by the PTSD patient. 
"lndjrect, long-term individual and societal costs stem from lost productivi­
ty, reduced quality of life, homelessness, domestic violence, the strain on 
families, and suicide.'.43 

PTSD is not a new phenomenon for our veterans. ''Nearly one in five 
Vietnam veterans suffered ... (PTSD) - and nearly one in 10 was still suf­
fering 11 to 12 years after the war .'.44 Today, the average age of a United 
States soldier serving in Iraq/ Mghanistan is thirty years old. Knowing that 
leaving PTSD untreated can lead to years of suffering and impactful societ­
al costs, the nation faces serious implications if the~ veterans continue to 
be denied access to statutorily-mandated benefits which would, in turn, give 
them access to evidence-based care. 

B. VA Claims Adjudication System: an Overview 

Oetting a medical diagnosis, and subsequent medical treatment, for 
PTSD is only one obstacle a veteran faces when dealing with the VA after 
discharge from active duty. Veterans are having a difficult time compelling 
the VA to make timely determinations on requests for disability benefits. 
As previously mentioned, levels of disability and corresponding monetary 
benefits for veterans are based on service-connected ratings, and the benefit 
is referred to as SCDDC.45 Disabilities can include those associated with 
emotional injuries, such as PTSD. In order "(t]o establish a claim for 
SCDDC, a veteran must present evidence of{1) a disability; {2) service in 
the military that would entitle him or her to benefits; and {3) a nexus be-
tween the disability and the service.'.46 · 

The initial claims procedure is extremely complicated, beginning with 
a daunting twenty-three page form. Complications in completing the re­
quired form include strict technical requirements which If missed may dis­
qualify the claim regardless of its underlying merit. 47 "Veterans often make 

. 42. See INVISffiLE WOUNDS OF WAR, supra note 2, at xxiii. 
43. !d. at8. 
44. Sean Alfano, Fewer VIetnam Veu &dferfomrPISD; But Study Shows Post-Traumatic 

Stress Levels Still Quite High, CBS NEWS, Aug. 17, 2006, htlp:/lwww.cbsnews.com/storiesl 
2006/08/171health/webmdlmainl908799.shtml (last visited July 21, 2009). 

45. See generally Compensation and Pension Benefits Page, supra note 20. 
46. Peake, 563 F. Supp. 2d at 1070. 
47. Peake, 563 F. Supp. 2d at 1071. See also http://www.wanns.vba.vagov/regs/ 

38CFRIBOOKb/supple-b-66.DOC, for an example of a "supplement" to filing for service 



2010] SAVING MONEY, NOT LIVES 165 

mistakes when completing this application and veterans suffering from 
PTSD have a particularly hatd time ... .'.48 It is no surprise that many first 
time attempts by veterans with PTSD to complete these forms result in de­
nials or inappropriately low SCDDC ratings. 49 The enormity of the impact 
of the claims adjudication process begins to unfold when the statistics are 
laid bare. 

It takes an average of 183 days for a veteran to receive an initial deci­
sion based upon his filing for SCDDC; after which a notice ofdisagreement 
may be filed. 50 Veterans pursuing a claim for PTSD have an additional 
burden of proving a "stressor" event during their service~ This makes the 
claim more complex to adjudicate, and so the length of time to adjudicate 
these claims is increased. 51 

A veteran who has been denied SCDDC does have the opportunity to 
apPeal the denial, though he will be without compensation during the time 
that he is waiting for his appeal to be decided. An adverse claims decision 
can be appealed to the Board of Veterans Appeals (BVA).52 It is notewor­
thy to remember that veterans experiencing symptoms of PTSD, whether 
they have had the good fortune to be diagnosed or not, may be experiencing 
the short-term effects of the disease state mentioned previously while they 
wait for a decision from the BVA. Thus while waiting for the BVA's deci­
sion, a veteran may be homeless, jobless, and experiencing severe depres­
sion. This becomes startling when looking at the next set of statistics. 

After filing the initial twenty-three page form, receiving a denial, and 
filing a notice of disagreement, it takes the VA, on average, 261 days to 
mail a veteran a Statement of the Case.53 Subsequently, it takes the veteran 
approximately forty-three days to file a required Form 9 substantive appeal 
based on the Statement of the Case. 54 After receiving a Form 9 appeal from 
the veteran, it then takes the VA another 573 days after receiving the veter­
an's Form 9 to certify the appea1.55 Some veteranS' have had to wait more 
than 1,000 days to get this certification.56 The veteran then has the pleasure 
of waiting yet another 336 days, oil average, for a decision to be rendered 
on his appeal. 57 Bottom line: it takes, on average, 4A years for a veteran to 
adjudicate a claim all the way through the appeals process, excluding the 
time the veteran had to wait for the initial denial ofbenefits.58 

connected benefits. 
48. Peake, 563 F. Supp. 2d at 1071. 
49. Fairweather, supra note 18, at 4. 
50. Peake, 563 F. Supp. 2d at 1070-72. 
51. /d. at 1070. See also 38 C.F .R. § 3.304 (2008) (outlining the specific requirements 

for a veteran to substantiate service-connected disabilities). 
52. Peake, 563 F. Supp. 2d at 1072. 
53. Jd. at 1073. 
54. Jd. 
55. Jd. 
56. Jd. 
57. Jd. at 1074. 
58. Peake, 563 F. Supp. 2d at 1073-74. 



166 INDIANA HEALTH LAW REVIEW [Vol. 7:157 

Even more startling is the fact that a veteran cannot pay for counsel to 
represent him during the initial phases of the claims adjudication process. 
Although a veteran may be represented throughout the claims adjudication 
process at the Regional Office ("RO"), the veteran is statutorily prohibited 
from compensating a lawyer to represent him at the RO level. 59 This is not 
to say that a veteran is left completely out in the cold: he can be assisted by 
attorneys acting pro bono or by Veteran Service Organizations (''VS0").60 

Even so, as noted by the court in Veterans for Common Sense v. Peake, the 
VA does not provide training on how to assist the veteran and "all of the 
VSOs combined cannot meet the. needs of all the veterans seeking bene­
fits.'.61 

As previously mentioned, veterans often make mistakes when com­
pleting the initial claim for SCDDC, and veterans suffering from PTSD are 
particularly susceptible to difficulty in completing the form. "Repairing a 
poorly crafted claim is difficult and time consuming and can leave the vet­
eran without proper compensation for years. ,,62 Although veterans are now 
able to hire an attorney to assist with their claims on appeal, few attorneys 
have any level of expertise in the area of VA claims.63 It follows, then, that 
without the ability to consult competent counsel or trained-VSO representa­
tives, a veteran is left to flounder along helplessly while his fate is left in 
the hands of the VA claims adjudication process: a process that takes, on 
average, 4.4 years to complete. 

No other claims adjudication process even remotely approaches the 
time frame of the VA claims adjudication system. The private sector health 
care/financial services industry, which processes thirty billion claims an­
nually, averages 89.5 days per claim, including the time required for resolu­
tion of disputed claims. 64 "Between October 1, 2007, and March 31, 2008, 
alone, at least 1,467 veterans died during the pendency of their appeals. 
When an appellant dies, the appeal is extinguished .• .6s There is no doubt 
that the veterans' advocacy groups' lawsuit was necessary to bring national 
attention to the shameful denial of benefits to our nation's veterans. By 
asking the court to intervene, as is statutorily and. constitutionally allowed, 
the lawsuit just may force the VA to make the necessary changes to provide 
the nation's veterans with their mandated benefits: without judicial inter-

59. Peake, 563 F. Supp. 2d at 1072, see also 38 U.S.C. §5904 (2007) (outlining the 
guidelines provided by Congress for attorney compensation). · 

60. Peake, 563 F. Supp. 2d at 1072. 
61. !d. (citation omitted). 
62. Fairweather, supra note 18, at 5. 
63. Id. 
64. Linda Bilmes, Soldiers Returning from Iraq and Afghanistan: The Long-Term 

Costs of Providing Medical Care and Disability Benefits at 8 (2007) (unpublished research 
paper, on file with Harvard University Kennedy School of Government), available at 
hUp:/lksgnotes1.harvard.eduiResearcblwp.nst7rwpiRWP07-0011$Filelrwp_07_001_bilmes.pdf. 

65. Peake, 563 F. Supp. 2d at 1075. 



2010] SAVING MONEY, NOT LNES 167 

vention. 

III. ANALYSIS: FEDERAL DISTRICT COURTS DoHA VE THE POWER TO 

GRANT A REMEDY 

A. Facial Constitutional Challenges to VA Allowed 

The Veteran's Judicial Review Act ("VJRA") contains statutory pro­
visions that preclude review of various challenges to the VA in federal dis­
trict courts.66 But the VJRA does not strip district courts of the ability to 
hear facial constitutional challenges to the VA benefits system.67 In addi­
tion, under the Administrative Procedure Act, a district court shall "compel 
agency action unlawfully withheld or unreasonably delayed. "68 Even the 
Court of Veterans' Appeals ("CV A") held that federal district courts pro­
vided an alternative forum to the VA system to litigate constitutional chal­
lenges stating: 

A claim which alleges only the unconstitutionality of 
a statute is not a claim "under a law that affects the 
provision of benefits by the Secretary" under § 
511 (a), but rather is a claim under the Constitution of 
the United States. As such, it is beyond the purview 
of section 511 (a). Nothing in title 38 prohibits a con­
stitutional challenge to any of the provisions of that 
title from being litigated in U.S. district court.69 

In order for the claim to move forward, the advocacy groups needed to es­
tablish standing and a waiver of sovereign immunity by the VA. 

1. Establishment of Standing 

Although the VA attempted to argue that the advocacy groups did not 
have standing to bring the lawsuit before the district court, Judge Conti 
ruled otherwise.70 

An association has standing to bring suit on behalf of 
its members when its members would otherwise have 
standing to sue in their own right, the interests at 

66. Veterans' Judicial Review Act ("VJRA"), Pub. L. No. 100-687 (1988); 38 U.S.C. 
§§ 7251-7298 (2000). 

67. 38 u.s.c. §§ 511, 1975 (1994). 
68. 5 u.s.c. § 706(1) (1993). 
69. Dacoron v. Brown, 4 Vet. App. 115, 119 (Vet. App. 1993). 
70. Peake, 563 F. Supp. 2d at 1056. 



168 INDIANA HEALTH LAW REVIEW 

stake are germane to the organization's purpose, and 
neither the claim asserted nor the relief requested re­
quires the participation of individual members in the 
lawsuit.71 

[Vol. 7:157 

The court also found that the veterans' advocacy groups demonstrated 
that the significant delays in receiving medical care and disability benefits 
from the VA did indeed satisfy the element of suffering injuries in fact. 72 In 
fact, the court acknowledged the severity of the injury, stating the injuries 
suffered by the veterans affected were anything but conjectural or hypothet­
ical "given the dire consequences many of these veterans face without time­
ly receipt of benefits or prompt treatment for medical conditions, 
especially ... PTSD.'m 

"Delays in health care, especially for mental health issues, and delays 
in receipt of disability benefits, which are often the primary or sole source 
of income for a veteran, can lead to exactly the type of injuries complained 
of by Plaintiffs.''74 Thus, a causal connection between the injuries suffered 
and the VA' s conduct in question, established the second element needed 
for standing. 

Finally, the court acknowledged that the injunctive and declaratory re­
lief sought by the advocacy groups would likely result in redressing the vet­
erans' injuries. 7s Although the court eventually held that it was not within 
the power of the court to actually grant the requested relief; the plaintiffs' 
established all the necessary elements for standing. 76 

2. Establishment ofWaiverofSovereign Immunity by the VA 

Standing is not the only matter the advocacy groups needed to estab­
lish for a district court to hear their complaint against the VA. "The United 

71. /d. at 1056 (citing Friends of the Earth. Inc. v. Laidlaw Envtl. Servs., Inc., 528 
U.S. 167, 181 (2000). See also Lujan v. Defenders ofW'lldlife, 504 U.S. 555, 560-61 (ex­
plaining the three elements a member would need to establish to sue in his own right: 

First, the plaintiff must have suffered an "injury in fact" - an invasion of 
a legally protected interest which is (a) concrete and particularized and 
(b) "actual or imminent, not 'conjectural' or 'hypothetical.' Second, 
there must be a causal connection between the injury and the conduct 
complained of- the injury has to be "fuirly ... trace[able] to the chal­
lenged action of the defendant, and not ... the result [of] the indepen­
dent action of some third party not before the court." Third, it must be 
"likely," as opposed to merely "speculative," that the injury will be "re­
dressed by a favorable decision. (citations omitted)). 

72. Peake, 563 F. Supp. 2d at 1077. 
73. /d. 
74. /d. 
75. /d. 
76. /d. 



2010] SAVING MONEY, NOT LIVES 169 

States must waive its sovereign immunity before a federal court may adju­
dicate a claim brought against a federal agency.'m Despite the fact that the 
Northern District of California federal court found in a preliminary decision 
that the advocacy groups had "sufficiently alleged various challenges to 
'final agency actions' ,"78 the court reversed its previous finding stating that 
the advocacy groups failed to challenge a final agency action. 79 

The Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, is 
the relevant statute for determining whether a valid waiver of sovereign 
immunity exists. Section 702 of the AP A states, in part: 

An action in a court of the United States seeking relief 
other than monetary damages and stating a claim that 
an agency or an officer or employee thereof acted or 
failed to act in an official capacity or under color of 
legal authority shall not be dismissed nor relief there­
in be denied on the ground that it is against the United 
States .... 80 

Section 704 of the APA states, in part, that only "[a]gency action 
made reviewable by statute and final agency action for which there is no 
other adequate remedy in a court, are subject to judicial review.'.s1 There­
fore, the advocacy groups needed to establish: 1) that a final agency action 
had taken place on the part of the VA, and 2) that the veterans had no other 
adequate remedy in a court in order for the district court to provide judicial 
review based on a waiver of sovereign immunity. 

The Northern District of California federal court in Veterans for 
Common Sense v. Peake correctly held that the VA benefits system for ad­
judicating veterans individual benefit claims does not provide an adequate 
alternative remedy for the limited purpose of plaintiffs' systemic, facial 
constitutional challenges.82 The court incorrectly deduced, however, that the 
plaintiffs failed to challenge a final agency action, reversing its previous 
decision. 83 In the alternative, the court did not take into consideration that 
"[r]eview of an agency's failure to act has been referred to as an exception 

77. Peake, 563 F. Supp. 2d at 1056 (citing Rattlesnake Coalition v. U.S. EPA, 509 
F.3d 1095, 1103 (9th Cir. 2007)). 

78. Veterans for Common Sense v. Nicholson, No. C-07-3758 SC, 2008 U.S. Dist. 
LEXIS 4540, at *19 (N.D. Cal. Jan. 10, 2008). 

79. Peake, 563 F. Supp. 2d at 1078. 
80. 5 U.S.C.A. § 702 (current through P.L. 111-4 approved 2009). See also Gallo 

Cattle Co. v. Dep't of Agric., 159 F.3d 1194, 1198 (9th Cir. 1998)(stating that the APA 
"does provide a waiver of sovereign immunity in suits seeking judicial review of a federal 
agency action under [28 U.S.C.] § 1331"). 

81. 5 u.s.c. § 704 (1993). 
82. Peake, 563 F. Supp. 2d at 1079. 
83. Nicholson, supra note 78, at *19. 



170 INDIANA HEALTH LAW REVIEW [Vol. 7:157 

to the final agency action requirement. ,,84 

a. Final agency action 

Agency action is defined as "the whole or a part of an agency rule, or­
der, license, sanction, relief, or the equivalent or denial thereof, or failure to 
act."85 The district court addressed the veterans concerns in its preliminary 
decision and stated that the veterans' challenges to aspects of the VJRA are 
"rightfully considered final agency action as they constitute the VA's denial 
of relief of health care and benefits."86 The court went on to say that "the 
summary and allegedly premature denial of PTSD claims ... result in alle­
gedly unlawful denial of benefits ... [and such] .•. policies and procedures 
fall within the broad statutory definition of 'final agency action' .'.s7 

Nonetheless, in the court's final decision, rendered just five months 
later, the court stated that the advocacy groups' challenges failed "for other 
reasons, including failure to challenge a final agency action, failure to chal­
lenge a discrete agency action, and/or failure to challenge an action that the 
agency is required to tak:e.~'88 Nowhere in its opinion does the court actual­
ly give a reason for this determination. In fact~ the court simply states that 
38 U.S.C. § 511 prevents the court from undertaking a review of the unrea­
sonable delay in claims adjudication as such a review would depend on the 
facts of each particular claim, and such a review is barred by § 511.89 

The district court did, however, acknowledge that the Supreme Court, 
in Norton v. S. Utah Wilderness Alliance, stated that "[i]t is uncontested the 
adjudication of benefits claims is a discrete agency action that the VA is 
required to tak:e.''90 Given the statistics outlined previously, it would appear 
that an average adjudication time for veterans' appeals of benefits decisions 
approaching 4.4 years would qualify as the VA's failure to act on a discrete 
agency action that the VA is required to take. Forays into individual claims 
are not required to resolve the challenges to delays across the adjudication 
system. The only connection that systemic delay has to individual veterans 
is the fact that the average is an aggregate of the underlying claim 
processing times. Thus, 38 U.S.C. § 511 would not bar the district court 
from review. 

The district court subsequently undertook an analysis to support its 
decision denying the veterans relief despite its statement that the advocacy 

84. Ctr. For Biological Diversity et al. v. Abraham, 218 F. Supp. 2d 1143, 1157 (N.D. 
Cal. 2002). 

85. 5 U.S.C. § 551(13) (1966) (emphasis added). 
86. Nicholson, supra note 78, at *17. 
87. /d. 
88. Peake, 563 F. Supp. 2d at 1078. 
89. /d. at 1083-84. 
90. Id (citing Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S. Ct. 

2373, 159 L. Ed. 2d, 137 (2004)). 



2010] SAVING MONEY, NOT LIVES 171 

groups failed to challenge a discrete agency action and/or failed to chal­
lenge a final agency action.91 The court did not undertake an analysis as to 
whether the VA's significant delays in SCDDC claims adjudication consti­
tuted a failure to act, which would constitute an exception to the final agen­
cy act requirement. Given the statistical evidence presented and the lack of 
explanation as to why the court changed its position, one can conclude that 
the advocacy groups did, indeed, challenge final agency action. 

b. No other alternate adequate remedy 

In addition to the requirement of challenging a final agency action, the 
advocacy groups had to show that there was no other adequate alternative 
remedy in a court.92 The district court ultimately found that ''the VA bene­
fits system is not an adequate alternate forum for [p ]laintiffs' systemic and 
facial constitutional challenges. "93 

Because the veterans' advocacy groups could arguably establish both 
elements to show a waiver of sovereign immunity on the part of the VA, 
and standing for the groups was clearly established, the district court's re­
view of the delay in the VA's claims adjudication process was warranted, 
despite the court's statement that it was precluded from such a review. The 
court, notwithstanding its proclamation that review was beyond its purview, 
still went through an analysis of the VA's claims adjudication system. In 
undertaking this analysis the court looked to the AP A, applicable congres­
sional statutes, and the Fifth Amendment of the Constitution in an effort to 
assess whether veterans are being denied due process caused by unreasona­
ble delay in benefit claims adjudication. 

B. Applicable Law: Administrative Procedure Act (APA), Congressional 
Statutes, Fifth Amendment to the United States Constitution 

Various statutes admonish the VA to adjudicate benefits, claims, and 
appeals in a timely manner.94 The APA entitles veterans to injunctive relief 
to remedy the VA's "unreasonable delays." Section 706(1) of the APA 
permits federal courts to compel agency action unlawfully withheld or un-

91. Peake, 563 F. Supp. 2d at 1083-89. 
92. 5 u.s.c. § 704 (1993). 
93. Peake, 563 F. Supp. 2d at 1079. 
94. See, e.g., 38 U.S.C. § 7101 (1994) (imposing a statutory duty to hire sufficient 

personnel to process appeals at the BVA in a timely manner); 38 U.S.C. § 5109B (1994) 
(imposing a statutory duty to resolve remands in an expeditious manner); 38 U.S.C. § 1705 
(1994) (imposing a statutory duty to ensure that the system will be managed in a manner to 
ensure that the provision of care to enrollees is timely and acceptable in quality); 5 U.S.C. § 
706(1) (1993) (stating that a reviewing court shall compel agency action unlawfully withheld 
or unreasonably delayed). 



172 INDIANA HEALTH LAW REVIEW [Vol. 7:157 

reasonably delayed.95 The United States Court of Appeals for the District 
of Columbia Circuit in Telecommunications Research and Action Center 
(TRAC) v. Federal Com11111nications Commission (FCC) decided that courts 
designated by statute to review agency action should do so when the agency 
has improperly withheld or unreasonably delayed action it is required to 
take.96 The court went on to state that although no single test had yet been 
articulated to detennine whether an agency had unreasonably delayed ac­
tion, one could discern ''the hexagonal contours of a standard. "97 These 
hexagonal contours include the following six factors to assess claims of 
agency delay: 

( 1) the time agencies take to make decisions must be 
governed by a "rule of reason" ... ; (2) where Con­
gress has provided a timetable or other indication of 
the speed with which it expects the agency to proceed 
in the enabling statute, that statutory scheme may 
supply content for this rule of reason ... ; (3) delays 
that might be reasonable in the sphere of economic 
regulation are less tolerable when human health and 
welfare are at stake ... ; ( 4) the court should consider 
the effect of expediting delayed action on agency ac­
tivities of a higher or competing priority ... ; (5) the 
court should also take into account the nature and ex­
tent of the interests prejudiced by delay ... ; and ( 6) 
the court need not "find any impropriety lurking be­
hind agency lassitude in order to hold that agency ac­
tion is 'unreasonably delayed.'"98 

These factors have since become known as the TRA C factors and have 
been used by subsequent courts to assess whether an agency's actions have 
been unreasonably delayed.99 The court in Veterans for Common Sense v. 
Peake undertook an analysis of the V A's actions, using the TRAC factors, 
to determine if unreasonable delay existed in the adjudication of benefit 
claims for veterans, even though it had stated that it had no authority to rule 
on such an issue.100 The court subsequently held that an analysis using the 
TRA C factors did not "favor a finding that the delays in the VA claims ad-

95. 5 u.s.c. § 706(1) (1993). 
96. Telecomm. Research and Action Ctr. v. Fed. Commc'ns Comm'n, 750 F.2d 70, 76 

(U.S. App. D.C. 1984). 
97. ld at80. 
98. ld (citations omitted). 
99. See, e.g., Independence Mining Co. v. Babbitt, 105 F.3d 502,507 (9th Cir. 1997). 

100. SeePeake, 563 F. Supp.2dat 1084-85. 



2010] SAVING MONEY, NOT LIVES 173 

judication system are unreasonable."101 

Apart from the claim under AP A, the veterans' advocacy groups 
brought a constitutional claim challenging that the delays and waiting times 
for veterans filing SCDDC claims and/or appeals were '"so lengthy as to 
constitute an unconstitutional deprivation of property under the Due 
Process Clause"' of the Fifth Amendment. 102 It has been well established 
that the veterans have a property interest in their benefits, as the benefits are 
statutorily-mandated. "Claimants who satisfy the statutory criteria for eli­
gibility are entitled as a matter of law to SCDDC benefits. Based on the 
statutory framework, many veterans have a protected property interest as 
applicants for and recipients of SCDDC benefits."103 

Substantial delays in adjudicating claims for disability benefits can, in 
and of themselves, violate the Due Process Clause. 104 In evaluating whether 
a procedure satisfies Due Process, courts balance (1) the private interest, (2) 
the risk of erroneous deprivation and the probable value, if any, of addition­
al safeguards, and (3) the government's interest, "including the function 
involved and the fiscal and administrative burdens that the additional or 
substitute procedural requirement would entail."105 The veterans' advocacy 
groups charged violation of due process as ''there is no opportunity for any 
hearing by a neutral decision-maker, the process is unduly complicated and 
lengthy, and there is no provision for any expedited process that would ap­
ply in an emergency situation such as a threatened suicide."106 

In Veterans for Common Sense v. Peake, the district court did not even 
undergo an analysis of the required three-part balancing test outlined in Ma­
thews v. Eldridge in order to determine if a due process claim applied to the 
veterans. The district court devoted only a single paragraph to summarily 
reject the veterans' due process claims.107 The court cited Wright v. Califa­
no, a case involving benefit dispensation by the Social Security Administra­
tion, stating that the holding in Wright was "illuminating."108 It is important 

101. /d. at 1085. 
1 02. /d. (quoting plaintiff's proposed order page 7). 
103. Peake, 563 F. Supp. 2d at 1086. 
104. See, e.g., Rodrigues v. Donovan, 769 F.2d 1344, 1348 (9th Cir. 1985) (stating that 

due process claim based on considerable delay in deciding right to disability benefits found 
not insubstantial); Andjugar v. Weinberger, 69 F.RD. 690,694 (S.D.N.Y. 1976) (stating that 
"[D]elays themselves may result in a deprivation of property."); Kraebel v. New York City 
Dep't. ofHous. Preservation and Dev., 959 F.2d 395,405 (2d Cir. 1992) (stating that "delay 
in processing can become so unreasonable as to deny due process."). 

105. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893,47 L. Ed. 2d 18 (1976). 
106. Peake, 563 F. Supp. 2d at 1082. 
107. ld at 1086. 
108. Id (quoting Wright v. Califano, 587 F.2d 345, 356 (7th Cir. 1978). The Wright 

court stated that 
although judicial intervention may be required at some point, the solu­
tion must come from the SSA itself with the assistance of Congress. To 
impose on the SSA the crash review program sought by plaintiffs could 



174 INDIANA HEALTH LAW REVIEW [Vol. 7:157 

to note here that the district court also cited yet another case which held that 
it would be rare for a court to intervene when the passage of time, and noth­
ing more, presented an occasion for the court to intervene in an agency's 
adjudicative proceedings. 109 

It is also important to note the link between the delays in the veterans' 
access to mental health care for PTSD and the delays in adjudication for 
SCDDC benefit claims. As mentioned previously, the district court found 
that many disability compensation recipients are totally or primarily depen­
dent upon their statutorily-mandated SCDDC benefits for financial support. 
38 U.S.C. § 1710 provides that the Secretary shall furnish medical services 
determined to be needed to any veteran for a service-connected disability 
for a five-year period. 110 The district court found that this language created 
an entitlement to health care for veterans for five years after separation from 
active duty. 111 The district court found that the evidence presented did not 
show that there was a "system-wide crisis" in which health care was not 
being provided within a reasonable time. 112 

Although the passage of 4.4 years to adjudicate a contested SCDDC 
benefit claim in itself is appalling, the fact that 1,000 veterans a month are 
attempting or succeeding in committing suicide, some simply waiting for 
the claims adjudication process to be completed to grant them their property 
right of benefit payouts. This certainly warrants more attention from the 
district court than a single paragraph. And the case the veterans put forth 
via the advocacy groups show, without a doubt, that there is more to the 
story than simply "the passage of time, and nothing more." Without access 
to the appropriate diagnosis and treatment for the disease state of PTSD, 
coupled with the denial of statutorily-mandated SCDDC benefits for some 
veterans to the tune of 4.4 years, these veterans are in desperate need of 
help: and the district court has it in its power to deliver that help. This law­
suit is that cry for help. 

C. Application ofTRAC Factor Analysis and Due Process Analysis to the 
VA 's Claims Atfjudication Process 

1. TRAC Factor Analysis 

Again, Section 706(1) of the APA permits federal courts to compel 
agency action unlawfully withheld or unreasonably delayed. 113 The district 

be expected to result in a deterioration of the quality of the review, and 
possibly more injustice to claimants than justice. 

109. Peake, 563 F. Supp. 2d at 1086 (quoting the holding ofFed'l Trade Comm'n v. 
Weingarten, 336 F.2d 687, 692 (5th Cir. 1964)). 

110. 38 u.s.c. § 1710 (1994). 
111. Peake, 563 F. Supp. 2d at 1079. 
112. Id. at 1081. 
113. 5 u.s.c. § 706(1) (1993). 



2010] SAVING MONEY;, NOT LIVES 175 

court undertook a TRAC factor analysis in regards to the VA's claims adju­
dication process and concluded that "[a]lthough the delays faced by veter­
ans, especially during the appeals process, are significant, the TRA C factors 
militate against a finding ofunreasonableness."114 

It is noteworthy that the TRAC factors impose a rule. of reason with re­
spect to agency delay and take into account the consequences to health and 
human welfare, balanced by the imposition of complying with timeliness of 
agency action upon the agency. The first and second TRAC factors specifi­
cally address the rule of reason and whether Congress ·has mandated any 
timetables or indications that infonn of a rule of reason. 115 The district 
court concluded that these frrst two factors favored "neither a finding of 
reasonableness nor unreasonableness" because the applicable statutory 
scheme lacked any fixed time limits, thus rendering the veterans'- claims of 
entitlement to relief under the AP A for the delays in claims adjudication 
without merit.116 The court deduced further that this holding was "rein­
forced by the fact that Congress specifically did not include any fixed time 
limits for the adjudication of veterans benefit clai:rps."117 

Yet, the entire purpose of the TRA C factors is to evaluate whether de­
lay is unreasonable in the absence of such defined deadlines. us Thus, the 
first TRA C factor supplies courts with a ''rule of reason" standard by which 
agency delay can be assessed absent an explicitly-defined deadline. When 
looking at the statistics put forth by the veterans' advocacy groups, and 
supported by the VA' s own data, it is difficult to believe that a 4.4 year ad­
judication time-frame for any SCDDC claim is "reasonable" under a "rule 
of reason" standard. 

In fact, this time frame becomes even more ''unreasonable" when 
compared to the private sector health care/financial services industry. This 
industry processes an annual thirty billion claims in an average of 89.5 days 
per claim, which includes the time required for claims that are disputed.119 

It is interesting to note that the United States Government Accountability 
Office ("GAO") has published several statements admonishing the VA's 
claims processing performance; and these admonishments span nearly a 
decade.120 

114. Peake, 563 F. Supp. 2d at 1084. 
115. Telecomm. Research and Action Ctr., 750 F.2d at 79. 
116. Peake, 563 F. Supp. 2d at 1084. 
117. Id. 
118. Forest Guardians v. Babbit. 174 F.3d 1178, 1191 n. 19 (lOth Cir. 1998) (stating 

that TRAC factor analysis only applies in the absence of any statutorily defined mandatory 
deadlines). 

119. Bilmes, supra note 64, at 7. 
120. See, e.g., U.S. Govr. AcCOUNTABILITY OFFICE, VETERANS' BENEFITS: PROCESSING 

ENCOURAGING, BUT CHALLENGES STILL REMAIN (1999); U.S. Govr. ACCOUNTABILITY 

OFFICE, VETERANS' BENEFITS: QUALITY AsSURANCE FOR DISABILITY CLAIMS AND APPEALS 

PROCESSING CAN BE FuRTHER IMPROVED (2002); U. S. Govr. ACCOUNTABILITY OFFICE, 

VETERANS' DISABILITY BENEFITS: LoNG-STANDING CLAIMS PROCESSING CHALLENGES 



176 INDIANA HEALTH LAW REVIEW [Vol. 7:157 

The district court belittled this statistic by emphasizing that only four 
to eleven percent of veterans who pursue appeals would face lessened de­
lays should the VA be forced to adjudicate these claims in a timely, or rea­
sonable, manner.121 What the district court failed to address is the fact that 
among that four to eleven percent are veterans who are suffering from 
PTSD, whether they have been diagnosed or not. The stress caused by 
struggling with VA bureaucracy exacerbates the already overwhelming 
symptoms of PTSD, and these veterans are left without a means to survive 
until their claims are finally adjudicated, or until they simply cannot wait 
any longer and attempt to adjudicate the situation in their own way: by 
joining the ever-growing ranks of veterans attempting suicide at the rate of 
1,000 per month. 

The district court could have looked to the VA' s own pilot program 
for expedited claims adjudication to provide content to the rule of reason 
under the second TRA C factor. 122 This pilot program asks participating 
RO' s to certify appeals to the BV A within thirty days of receipt of a Form 9 
appeal.123 If the VA itself recognizes that a problem with claims adjudica­
tion exists to the point that a pilot program is needed to test the viability of 
expediting the claims adjudication process, then surely the district court 
could have acknowledged the same. 

Allowing that the first and second TRAC factors impose a rule of rea­
son upon the VA for adjudicating claims in a reasonable manner, and that 
the TRA C factors exist to evaluate whether delay is unreasonable in the ab­
sence of any defined deadlines, the evidence weighs heavily in favor of the 
veterans for these first two TRAC factors. The district court's conclusion 
that these first two TRAC factors favored neither a finding of reasonable­
ness nor unreasonableness simply does not ring true when applying the ac­
tual timeliness of the VA's claims adjudication timeframe for claims that 
must make their way through the entire appeals process. Delays of over four 
years are unacceptable under any rule of reason, especially when compared 
to the private sector's average of 89.5 days per claim, which includes the 
time needed to adjudicate disputed claims. 

The district court found that analysis under the third, fifth and sixth 
TRAC factors also weighed heavily in the veterans' favor. 124 The court 
stated that it was beyond "dispute that the health and welfare of veterans 
was at stake," 125 which directly addressed the third TRAC factor. The court 

PERSIST(2007) [hereinafter GAO LoNGSTANDING CLAIMS];); U. S. GoVT. ACCOUNTABILITY 
OFFICE, VETERANS' DISABILITY BENEFITS: PROCESSING OF CLAIMS CONTINUES TO PRESENT 
CHALLENGES (2007) [hereinafter GAO PROCESSING OF CLAIMS]. 

121. Peake, 563 F. Supp. 2d at 1085. 
122. Board of Veterans' Appeals: Expedited Claims Adjudication Initiative-Pilot Pro­

gram, 73 Fed. Reg. 20571 (proposed April16, 2008) (to be codified at 38 C.F.R. pts. 3 and 
20). 

123. !d. 
124. Peake, 563 F. Supp. 2d 1085. 
125. !d. (reiterating that the third TRAG factor declares that delays that might be reason-



2010] SAVING MONEY, NOT LIVES 177 

addressed the fifth TRAC factor by stating that the "nature and extent of the 
interests prejudiced by the delay could not be any more serious.'~126 Finally, 
the court found that the sixth TRAC factor, in which a finding of unreasona­
ble delay need not be based on impropriety on the part of an agency, fa­
vored relief for the veterans. 127 

Nevertheless, the court went on to state that when applying the TRAC 
factor analysis, the weight of all other factors, including the factor stating 
that delays affecting human health and welfare are less tolerable than those 
in the sphere of economic regulation, did not "overcome the fourth factor, 
which states that the court should consider the effect of expediting delayed 
action on agency activities of a higher or competing priority."128 The only 
justification that the court offered in finding that the fourth TRAC factor 
outweighed all the overwhelming evidence in favor of the veterans was that 
only four percent "of the total claims are actually pursued to a decision by 
the BVA.''129 The court mentioned Congress' continuing concern that man­
datory deadlines would subordinate quality to timeliness,130 and that com­
peting agency priorities precluded relief. 

Be that as it may, the VA never argued that implementing a more rea­
sonable, timely adjudication of appealed claims would compromise the 
timeliness of claims adjudication at the initial RO level. Nor did the VA 
argue that decreasing the time to adjudicate appealed claims would subordi­
nate quality to timeliness; neither for claims at the RO level, nor for ap­
pealed claims. Finally, the VA did not offer any competing priorities that 
would preclude it from adjudicating appealed veterans' claims in a timelier 
manner. "(E]xtensive or repeated delays are unacceptable notwithstanding 
competing interests."131 

Thus, the court's conclusion that lessening the unconscionable delays 
at the appellate level of claims adjudication would negatively impact the 
claims adjudication at the RO level is unfounded. Likewise, the court's 
conclusion that factor four of the TRA C analysis outweighs all the other 
factors weighing in favor of the veterans is unjustified. 

Under the AP A, should a court determine that agency action has been 
unreasonably delayed, the court must compel the agency to act.132 Given 
the fact that delays in the adjudication of veterans' claims have spanned 
more than a decade, coupled with the fact that the TRA C factor analysis 

able in the sphere of economic regulation are less tolerable when human health and welfare 
are at stake). 

126. Peake, 563 F. Supp. 2d at 1085. 
127. !d. 
128. !d. at 1084-85 (quoting Independent Mining Co. v. Babbit, 105 F.3d 502, 507 n. 7 

(9th Cir. 1997)). 
129. !d. 
130. Id at I 084. 
131. Muwekma Tribe v. Babbitt, 133 F. Supp. 2d 30, 40 (2000 U.S. Dist. LEXIS 

22871) 
132. 5 u.s.c. § 706(1) (1993). 



178 ThiDMNAH~THLAWREvmw [Vol. 7:157 

weighs heavily in the veterans' favor, the district court had within its power 
to rule that the VA had ''unlawfully withheld or unreasonably delayed" 
benefits to deserving veterans under section· 706(1) of the AP A. Thus, the 
district court should have compelled the VA to act pursuant to the statutory 
mandates set forth by Congress.133 

2. Due Process Analysis 

Not only do the four-year delays in claims adjudication violate con­
gressional statutory mandates and the AP A requirements, but these delays 
also constitute a violation of the Due Process Clause. The veterans' advo­
cacy groups contended ''that the delays in adjudicating SCDDC benefit 
claims [were] excessive and unreasonable and therefore violate the rights of 
veterans under ... the Due Process Clause."134 The district court, however, 
held that although the "delays in benefits claims adjudications, especially 
for appeals, [were] substantial, the existing statutory framework . . . pre­
vent[ed] this Court from taking remedial action"135 and stated "[t]his con­
clusion [was] reinforced by the fact that only 4% of the total claims each 
year are appealed and pursued to a decision by the BV A."136 

The district court did recognize that veterans who satisfy eligibility 
criteria outlined in the applicable statute are entitled, as a matter of law, to 
SCDDC benefits!l7 As such, veterans who qualify have a property interest 
under the Due Process Clause. Nevertheless, the court went on to quote 
case law supporting its view that a due process violation had not occurred, 
stating that "' [T]here is no talismanic number of years or months, after 
which due process is automatically violated "'138 The court continued down 
this path of reasoning, justifying its decision to not undergo a thorough due 
process analysis, writing, "'In determining when due process is no longer 
due process because past due, the influence of other significant circums­
tances is not to be ignored .... Delay is a factor but not the only factor. "'139 

133. See, e.g., 38 U.S.C. § 710l(a) (1994) (imposing a statutory duty to hire sufficient 
personnel to process appeals at the Board of Veterans Appeals ("BVA") in a timely manner); 
38 U.S.C. § 5109B (1994) (imposing a statutory duty to resolve remands in an expeditious 
manner); 38 U.S.C. § 1705 (1994) (imposing a statutory duty to ensure that the system will 
be managed in a manner to ensure that the provision of care to enrollees is timely and ac­
ceptable in quality); 5 U.S.C. § 706(1) (1993) (stating that a reviewing court shall compel 
agency action unlawfully withheld or unreasonably delayed). 

134. Peake, 563 F. Supp. 2d at 1083. 
135. /d. 
136. /d. 
137. /d. at 1086. See also 38 U.S.C. § 1710 (1994) (providing that the Secretary shall 

furnish medical services determined to be needed to any veteran for a service-connected 
disability for a five-year period). 

138. Peake, 563 F. Supp. 2d at 1086 (quoting Coe v. Thurman, 922 F.2d 528, 531 (9th 
Cir. 1990)). 

139. Peake, 563 F.Supp.2d at 1086 (quoting Wright v. Califano, 587 F.2d 345, 354 (7th 
Cir. 1978)). 



2010] SAVING MONEY, NOT LIVES 179 

The simple passage of time, though, is relevant for veterans being de­
nied their statutorily-mandated benefits: for some suffering from PTSD, it 
can mean the difference between life and death. With "eighteen U.S. veter­
ans kill[ing] themselves every day ... [more] veterans are committing sui­
cide than are dying in combat overseas."140 Indeed, the court's own 
argument that other significant circumstances are not to be ignored would 
seem to justify a closer look at how the denial of SCDDC benefits in a time­
ly manner may, or may not, be a contributing factor in the escalating num­
ber of veteran suicides. 

As stated previously, delays in adjudicating claims for disability bene­
fits can, without more, violate the Due Process Clause. 141 Given that the 
veterans' advocacy groups firmly established that some veterans, albeit per­
haps only four percent, have waited four years or more for a claims deter­
mination, the district court shirked its duty by not undertaking a thorough 
due process analysis. Had the district court undergone an analysis of the 
required three-part balancing test outlined in Mathews v. Eldridge to deter­
mine if a due process claim applied to the veterans being denied SCDDC 
benefits, it would have found a due process violation. 

To reiterate, the Mathews v. Eldridge balancing test requires that 
courts balance (1) the private interest, (2) the risk of erroneous deprivation 
and the probable value, if any, of extra safeguards, and (3) the govern­
ment's interest, including the function involved and the fiscal and adminis­
trative burdens that the additional or procedural requirement would 
entai1!42 In regards to the private interest involved, the veterans' interests 
could not be higher. 

"[I]n assessing the injury caused by deprivations of federal benefits, 
we look to claimants' individual dependency on the benefits, and the poten­
tial injury incurred by losing those benefits .... "143 Many disability com­
pensation recipients are either totally, or primarily, dependent upon SCDDC 
benefits for financial support, 144 as they may be jobless upon relinquishing 
their positions as active service members. Indeed, the delay in processing 
these claims for benefits hinders disabled veterans' ability to make pay­
ments on their homes and other necessities. 

For veterans who may be experiencing the effects ofPTSD, the inabil-

140. Aaron Glantz, Vets Health System in Need of Triage, INTER PRFSS SERVICE NEWS 

AGENCY, Jan. 15, 2009, http://ipsnews.net/news.asp?idnews=45423 (last visited July 21, 
2009). 

141. See, e.g., Rodrigues, 169 F.2d at 1348 (finding that a due process claim based on 
"considerable delay'' in deciding the right to disability benefits was not insubstantial); Krae­
bel, 959 F.2d at 405 (stating that "[D]elay in processing can become so unreasonable as to 
deny due process."); .Andujar, 69 F.R.D. at 694 (stating that "[D]elays themselves may 
result in a deprivation of property."). 

142. Mathews v. Eldridge, 424 U.S. 319,335,96 S. Ct. 893,47 L. Ed. 2d 18 (1976). 
143. Briggs v. Sullivan, 886 F.2d 1132, 1145 (9th Cir. 1989). 
144. Peake, 563 F. Supp. 2d at 1070. 



180 INDIANA HEALTH LAW REVIEW [Vol. 7:157 

ity to secure the SCDDC benefits owed to them only exacerbates the under­
lying disease state, leading to a sense of hopelessness which may inevitably 
contribute to the risk of these veterans taking matters into their. own hands, 
at the rate of eighteen suicides a day. "Between October 1, 2007, and March 
31, 2008, alone, at least 1,467 veterans died during the pendency of their 
appeals."145 Amazingly, upon an appellant's death, the appeal is extin­
guished, thus effectively extinguishing any hope that the veteran's survivors 
will benefit from any SCDDC benefits. Noting the devastating effect this 
can have on the veteran's survivors, proposed legislation would have al­
lowed for substitution by surviving spouses as claimants when a veteran 
spouse dies while a claim is pending. 146 Alas, the veterans were not even 
afforded this relief, as the proposed legislation never came up for a vote in 
the Senate, despite passage in the House of Representatives . 

. When evaluating the pri~te interest of the veterans, it appears to be a 
very small leap in logic that this factor weighs heavily in favor ofthe.pros­
pect that.veterans are being denied due process. In addition, the risk ofer­
roneous deprivation is high. Statistics brought out in Veterans for Common 
Sense v. Peake paint a clear picture of the level of erroneous deprivation: 

The BVA reverses RO decisions 21 percent of the 
time and remands another 41 percent of the cases; the 
cumulative error rate on V ARO decisions is over 90 
percent. By the VA's owri calculations, 44 percent of 
the reasons for remand by the BV A are "avoida­
ble,'' .... Seventy-five percent of the remanded cases 
return to the BV A a second time, and 27 percent of 
those cases are remanded once again. 147 

Further, the district court noted that Veterans Benefits Administration 
("VBA") employees ''violating their duty to assist veterans" accounted for 
almost half of the avoidable remands in the very short time frame between 
January 1, 2008, and March 31, 2008.148 

The district court also stated, though, that "[i]n looking at the totality 
of SCDDC claims ... the risk of erroneous deprivation is relatively 
small."149 The court justifies this position by stating that only four percent 
of claims filed proceed to the BV A, and thus the affected veterans must ab-

145. !d. at 1075. 
146. Veterans Disability Benefits Claims Modernization Act of2008, H.R. 5892, 110th 

Cong. § 111 (2008), available at http:/lwww.govtrack.us/congresslbilltext.xpd?bill=h110-
5892. 

147. Gordon P. Erspamer, The New Suspect Class. Tragically, Our Veterans, ABA 
HUMAN RIGIITS. Spring 2008, at 20. 

148. Peake, 563 F. Supp. 2dat 1075. 
149. !d. at 1087. , 



2010] SAVING MONEY, NOT LIVES 181 

ide by the principle that '"the effect that a process must be judged by the 
generality of cases to which it applies, and therefore, process which is suffi­
cient for the large majority of a group of claims is by constitutional defini­
tion sufficient for all of them. '"150 

The district court, though, failed to address just how many veterans 
fall within that four percent affected by the VA's claims adjudication 
process. The most recent number available states that the VBA has a back­
log of "somewhere between 400,000 and 600,000" claims. 151 Thus, at least 
400,000 claims are awaiting final adjudication through the VBA, with the 
possibility that those claims may not be adjudicated for 4.4 years. This 
hardly seems to be an insignificant percentage of veterans waiting for their 
SCDDC benefits. And with eighteen veterans committing suicide each day, 
this number becomes appalling. 

The district court did attempt to minimally address the second Ma­
thews factor by stating that "although the additional safeguards Plaintiffs 
seek would likely reduce the number of avoidable remands and erroneous 
deprivations, the fiscal and administrative burdens of these additional pro­
cedural requirements are significant."152 So although factor two under the 
Mathews analysis also weighs heavily in favor of the veterans, the district 
court placed all emphasis on the third Mathews factor. In effect, the district 
court deduced that the perceived administrative burden to the VA for im­
plementing some of the veterans' requests for relief outweighed the veter­
ans' interests in obtaining the requested relief. 

But the VA 's interest in ensuring accurate and timely adjudication of 
SCDDC claims is not at odds with the veterans' interest in timely adjudica­
tion; in fact, the two interests coincide. In addition, the VA presented no 
evidence that implementation of some of the veterans' requests would 
present such perceived administrative burdens. The court simply held that 
"[i]mplementation and maintenance of such a system would be costly in 
terms ofthe resources and manpower that the VA would need to commit to 
the RO proceedings."153 

One such request is the ability to pay an attorney from the beginning 
of the claims adjudication process. Given that the claim forms are excee­
dingly technical, lengthy, and difficult to fill out, and that many times 
claims are denied based on information contained in the initial claim form, 
it would seem appropriate for veterans to have the benefit of legal counsel. 

150. Id. at 1087 (quoting Walters v. Nat'l Ass'n ofRadiati011 Survivors, 473 U.S. 305, 
330, 105 s. Ct. 3180,87 L. Ed. 2d 220(1985)). 

151. Bilmes, supra note 64, at 16. See also GAO LoNG-STANDING CLAIMS, supra note 
120; Statement of Daniel Bertoni, supra note 120 (outlining the backlog ofVBA claims and 
the persistent challenges to adjudicating those claims). 

152. Peake, 563 F. Supp. 2d at 1088. 
153. Id. at 1088 (noting that plaintiffs requested "the general right of discovery, includ­

ing the power to subpoena witnesses and documents, the ability to examine and cross­
examine witnesses, the ability to pay an attorney, and the right to a hearing."). 



182 INDIANA HEALTH LAW REVIEW (Vol. 7:157 

"Imagine if our legal system were set up so that plaintiffs were forced to 
assemble, file, and argue their own lawsuits, and that attorneys could only 
be paid for their assistance after the initial case was lost .... "154 

This is the end effect of not allowing veterans to pay for attorney as­
sistance at the outset of the claims adjudication process, per The Veterans' 
Choice of Representation and Benefits Enhancement Act of 2006.155 The 
district court could have granted this request, which would have benefitted 
the veterans and the VA, without any additional administrative costs to the 
VA. The VA already employs a host of attorneys to look after its interests. 
It seems only right that the veterans be allowed the same legal representa­
tion. 

The district court, rather than engaging in an in-depth analysis using 
the Mathews factors, instead based its due process analysis on a single So­
cial Security case from the Seventh Circuit.156 In Wright, Social Security 
disability claimants challenged hearing delays of up to 180 days and asked 
the court to impose time limits on the processing of claims, or else make 
interim payments of benefits.157 Although the district court stated it found 
the Wright decision "illuminating," the very phrases the court pulled out of 
the Wright decision to make its case actually appear to benefit the argu­
ments the veterans put forward. 

For instance, the district court quoted the Wright decision, stating that 
'"[i]n determining when due process is no longer due process because past 
due, the influence of other significant circumstances is not to be · ig­
nored .... Delay is a factor but not the only factor."'158 These quotes ac­
tually seem to lean towards favoring the veterans, and not the VA. The 
veterans absolutely take issue with factors other than the simple delay of 
claims adjudication. The veterans put forth statistics that claims for veter­
ans suffering from PTSD are more difficult for the veterans to fill out dur­
ing the initial phase of claim filing, and that these claims are more 
susceptible to denial based on mistakes the veterans with PTSD make due 
to their illness. Besides, the 180 days of delay in the Wright decision pales 
in comparison to the four-year delays experienced by veterans trying to ma­
neuver their way through the VA' s claims adjudication system. 

The Wright court went on to state that "[tJhere may be ... in the more 
typical situation unjustified and unreasonable delays constituting a depriva• 
tion of property in violation of due process requiring our interven-

154. Craig Kabatchnick, After the Battles: The Veterans' Battle with the VA, ABA 
HUMAN RIGHTS, Spring2008, at 13. 

155. See 38 U.S.C. §§ 5902-5905 (2007). 
156. Peake, 563 F. Supp. 2d at 1086 (referring to the decision in Wright v. Califano, 

587 F.2d 345 (7th Cir. 1978)). 
157. Wright v. Califano, 587 F.2d 345 (7th Cir. 1978). 
158. Peake, 563 F. Supp. 2d at 1086 (quoting Wright v. Califano, 587 F.2d 345, 354 

(7th Cir. 1978)). 



2010] SAVING MONEY, NOT LIVES 183 

tion .... "159 The veterans in Veterans for Common Sense v. Peake surely 
put forth arguments strong enough to advocate just such a judicial interven­
tion. 

When actually looking more deeply into a due process analysis apply­
ing the facts of the veterans' experience with the VA claims adjudication 
process to the Mathews factors, it appears as though each factor weighs in 
favor of the veterans, thus implying that the veterans are in fact being de­
nied due process. For those veterans whose claims are trapped in the 
"chum" of the VA claims adjudication process, sometimes for decades, the 
denial of due process regarding those claims can result in the most irrepara­
ble type of harm: loss of hope, onset of despair, and sometimes even death 
by suicide. 

IV. RECOMMENDATIONS 

While the evidence strongly suggests that veterans, particularly those 
with PTSD, are being denied constitutional due process, thus mandating 
judicial intervention, several recommendations exist that would grant the 
veterans relief without such intervention. Although the court denied the 
veterans the injunctive relief they sought, perhaps the trial was necessary to 
bring the issues into sharp focus so that steps, other than judicial interven­
tion, could be taken to alleviate the suffering many veterans with PTSD 
experience when trying to maneuver through the VA's claims adjudication 
system. 

"The Government Accountability Office, House Veterans' Affairs 
Committee staff, and the VA's own Inspector General have come out with 
report after report cataloguing shortfalls in the expenditure of funds and 
delivery of services" to the veterans.160 In regards to the overwhelming de­
lays seen in the VA's claims adjudication system, a reasonable remedy 
would be to presumptively approve disability claims, particularly those re­
lated to PTSD, "to ensure no veteran languishes or falls into poverty while 
awaiting financial assistance."161 This approach would be strikingly similar 
to that employed by the Internal Revenue Service ("IRS"}, where the IRS 
deters fraudulent claims by presuming that the taxpayer's filed return is cor­
rect and then subsequently audits those returns. ''This startlingly easy 
switch would ensure that the US no longer leaves disabled veterans to fend 
for themselves."162 

159. Wright, 587 F.2d at 356. 
160. Fairweather, supra note 18, at 24. Accord GAO LoNG-STANDING CLAIMs, supra 

note 120; DANIEL BERTONI, UNITED STATES GoVERNMENT ACCOUNTABILITY OFFICE, 

VETERANS' DISABILITY BENEFITS: PROCESSING OF CLAIMS CONTINUES TO PRESENT 
CHALLENGES (GA0-07-562T), March 13, 2007. 

161. Fairweather, supra note 18, at 24. 
162. Bilmes, supra note 64, at 18. 



184 INDIANA HEALm LAW REVIEW [Vol. 7:157 

Despite this. simple proposed solution, VA spokesperson Kerri Chil­
dress stated that "[v]eterans are human.... Some are in desperate situa­
tions. Some have the choice of going to jail or the military. So a portion of 
them would commit fraud."163 Ms. Childress goes on to say that 
"[e]liminating the proof requirement would open the VA's checkbook to 
fraudulent claims .... "164 Nevertheless, part of the district court's very 
decision in Veterans for Common Sense v. Peake to refuse the veterans re­
lief for denial of due process centered around the fact that "only" four per­
cent of veterans who file claims are ultimately affected. If this is true, then 
over ninety· percent of initial claims are approved. As an initial safeguard 
against the fraud that Ms. Childress fears would be rampant, the VA could 
start small: automatically approve PTSD claims ''with the understanding 
that deployment to Iraq and Mghanistan means VBA concedes there was at 
least one stressor sufficient enough to cause PTSD, unless there is evidence 
to the contrary."165 

Yet another suggestion to reduce the number of backlogged claims is 
to "fast track" claims submitted by returning Iraq and Mghanistan veterans 
in a "single center staffed with highly experienced group of adjudicators 
who could provide most veterans with a decision within 90 days."166 This 
could be readily accomplished by expanding "the Vet Centers to offer some 
assistance in helping veterans figure out their disability claims.''167 This 
solution would grant greater access to the veterans than the current system, 
where the veteran has to travel to one of the fifty-seven VA Regional Offic­
es throughout the country to file a claim for SCDDC benefits. For the 
PTSD veteran, the increased access to both experienced claims adjudicators 
and filing locations would not only ease the process of filing, but would 
better ensure that the initially filed claim was prepared appropriately. 

Finally, "attorney representation should be available from the earliest 
claims stage."168 The services of attorneys can ensure the successful com­
pletion of the very complex PTSD claim. Umepresented PTSD veterans 
have great difficulty in preparing and filing their SCDDC claims, especially 
since the very condition giving rise to the claim adversely affects the veter­
an's ability to do so. 

Currently, a veteran is allowed to pay for legal counsel only after a 

163. Joshua Kors, How the VA Abandons Our Vets, THE NATION, Sept. 15, 2008, avail­
able at http://www.thenation.com/doc/20080915/kors (last visited July 21, 2009). 

164. Id. 
165. Hearing on Regional Office Solutions to Reduce the 65,000 Claim Backlog at the 

Veterans Benefits Administration: Hearing Before the Subcommittee on Disability Assis­
tance and Memorial Affairs of the H. Comm. on Veterans' Affairs, I lOth Cong. Appendix 
(2008) (statement of Paul Sullivan, Executive Dir., Veterans for Common Sense). 

166. Bilmes, supra note 64, at 18. 
167. Id. 
168. Fairweather, supra note 18, at 24. 



2010] SAVING MONEY, NOT LIVES 185 

veteran's initial claim for SCDDC benefits has been denied.169 This seems 
to be a counter-intuitive way to assist the nation's veterans with the filing of 
their SCDDC benefit claims. It is at the initial filing that veterans are in 
desperate need of legal assistance. The initial filing is the veteran's oppor­
tunity to produce the evidence necessary to prove his claim for SCDDC 
benefits. 

This includes the presentation of such evidence as: (1) 
statements from doctors who have provided treatment 
for the disability at issue over a prolonged period of 
time; (2) submission reports from board-certified 
medical doctors who specifically specialize in the 
field of medicine for which the claimed disability is at 
issue; and (3) articles and citations from recog-
nized medical treatises, buddy statements, morning 
reports, evidence of citations, or other proof to help 
the veteran develop his or her claim for disability 
compensation or pension. 170 

Clearly, this burden would be difficult for any veteran, but most especially 
for a PTSD veteran who may be experiencing the very symptoms that lead 
him to file the claim in the first place. 

Opposition to allowing attorneys to be involved from the initial stage 
of claim filing argue that such action would "make the VA claims adjudica­
tion process adversarial rather than nonadversarial, as intended."171 But the 
experiences that the veterans have at the initial filing of claims for SCDDC 
benefits strongly suggest that the VA claims adjudication process is no 
longer nonadversarial in nature. "The burden of proof is always on the vet­
eran to somehow prove that his or her claim for service-connected benefits 
is meritorious and worthy of a grant of service-connected benefits."172 The 
initial twenty-three page disability application is "loaded with charts and 
legal jargon."173 It would only seem right that a nation wishing to provide 
for the veterans who served our nation would do so by allowing the veter­
ans the right to pay for legal assistance at the most critical stage of request­
ing SCDDC benefits: the very first stage of claims filing. 

In sum, the VA could avoid what may prove to be inevitable judicial 
intervention by implementing several recommendations made by different 
sources. These recommendations include 1) presumptively approving disa­
bility claims, particularly those related to PTSD, 2) fast tracking claims 

169. 38 u.s.c. §§ 5902-5905 (2007}. 
170. Kabatchnick, supra note 154, at 15. 
171. !d. at 16. 
172. !d. 
173. Kors, supra note 163. 



186 INDIANA HEALTH LAW REVIEW [Vol. 7:157 

submitted by returning Iraq and Afghanistan veterans, and 3) allowing vet­
erans the option of attorney representation at the earliest stage of the claims 
benefit process. 

V. CONCLUSION 

It is an undisputed fact that eighteen veterans a day, or close to 6,000 
veterans a year, commit, or attempt to commit suicide. The lawsuit brought 
by the two advocacy groups in Veterans for Common Sense v. Peake 
brought to the nation's attention some of the underlying reasons for this 
stark statistic. Although this lawsuit sought injunctive relief against the VA 
and not damages, the district court could not seem to find in its analysis of 
the facts presented that the VA claims adjudication system does, indeed, 
deny due process for veterans; particularly those experiencing the disease 
state ofPTSD. 

Although it seems evident that judicial intervention is not precluded 
from offering the veterans the relief they seek, perhaps the bringing of this 
lawsuit served a different purpose. By acknowledging that there is a signif­
icant underlying problem with the VA's claims adjudication system, this 
lawsuit perhaps opened the door to alternatives solutions. These alterna­
tives may alleviate some of the stress veterans experience in filing for 
SCDDC benefits: stress that could ultimately contribute to a veteran's deci­
sion to take his life. 

By implementing some of the well thought out alternatives to judicial 
intervention, the VA could streamline the claims adjudication process with 
minimal effort and accomplish the goal of providing for our nation's return­
ing war veterans, thus averting what appears to inevitably be judicial inter­
vention. Presumptively approving disability claims (particularly those 
related to PTSD), fast-tracking claims submitted by returning Iraq and Afg­
hanistan veterans in a single center staffed with highly experienced group of 
adjudicators, and allowing legal representation at the initial stages of filing 
claims for SCDDC benefits would significantly relieve the backlog of 
claims that currently plagues the VA. 

Although the VA's claims adjudication process should be scrutinized 
to ensure due process and the timely disposal of claims, perhaps by imple­
menting the suggestions put forth by a variety of knowledgeable sources the 
VA could once again commit to its own motto: To care for him who shall 
have borne the battle and for his widow and his orphan.