February 5, 2008, San Francisco California - 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 said.

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.

 1  |  2