April 19, 2014

New PTSD Regulations Expedite Benefits to More Veterans

In July, the Department of Veterans Affairs (VA) released new regulations on Post Traumatic Stress Disorder (PTSD) claims.

The changes arose, at least in part, due to the often seemingly-endless appeals processes for PTSD claims, which average 4.4 years according to Veteran Journal. The VA is also the subject of a class action lawsuit, which asserts that the extensive time to process claims, upwards of fifteen years in some cases, violates Veterans’ constitutional rights. With evidence that “nearly 3,000 soldiers die a year while waiting for their appeals to the VA for mental health benefits,” and with over 85,000 Veterans on a waiting list to claim mental health benefits (2009), it is unsurprising that President Obama hailed the new regulations:

I don’t think our troops on the battlefield should have to keep notes just in case they need to apply for a claim. And I’ve met enough veterans to know that you don’t have to engage in a firefight to endure the trauma of war. So, we’re changing the way things are done.

The new rule applies to Veterans of any era and to all new claims and appeals received on or after July 13, 2010, as well as all pending yet undecided claims and appeals filed before July 13, 2010.

The fundamental change in the rule, implemented to expedite decisions, is to allow for a Veteran to “establish the occurrence of an in-service stressor though his or her own testimony;” prior to the rule change, the VA was required to verify the stressor accounts through extensive record analysis, a “very involved an protracted process.”

The Veteran’s stressor testimony must be in conjunction with several other elements: 1) the Veteran must be diagnosed with PTSD, 2) a VA psychiatrist must confirm that the claimed stressor is adequate to support the diagnosis, 3) the Veteran’s symptoms are related to the claimed stressor, and 4) the claimed stressor is consistent with the “places types, and circumstances of the Veteran’s service and the record provides no clear and convincing evidence to the contrary.”

The new regulations also allow for PTSD claims to be processed where the Veteran’s stated stressor is not directly related to combat or POW service. The stressor need only be related to a “fear of hostile military or terrorist activity . . . consistent with the places, types, and circumstances of the Veteran’s service.” VA adjudicators determine whether or not the claimed stressor is consistent with the Veteran’s service.

The rule change will be especially beneficial to those Veterans “whose military records have been damaged or destroyed,” providing no definitive evidence of combat action that could result in PTSD, despite reasonable Veteran testimony to the contrary. Additionally, women Veterans, whose roles in the military “placed them at risk of hostile military or terrorist activity,” will see a great benefit from the rule change.

While the changes seemingly make it easier for claims to be processed, and therefore increase the risk of fraud, James Dwyer, chief of PTSD services for the VA of Greater Los Angeles, believes that gains to the system outweigh any such risk. Dwyer states that “every large system has to deal with” such concerns and “anyone who puts on the uniform, signs the papers, goes over, serves, should have the benefit of the doubt.” Additionally, as Veteran Journal contends, fraudulent claims are unlikely “due to the fact that a veteran must first be diagnosed with PTSD and if that veteran shows improvements their benefits can be cut back over time to reduce costs.”

Image Source: Wikimedia Commons

DOJ Letter to State Courts Clarifies Obligation to Provide Language Access

Today, the Justice Department issued a letter to chief justices and state court administrators to help clarify the obligation “to provide oral interpretation, written translation and other language services to to people who are limited English proficient (LEP);” all courts that receive federal financial assistance must provide such services as directed by Executive Order 13166, now in its tenth year.

The letter outlines four concerns for courts to address regarding the services they provide to LEP individuals:

  1. Interpreter assistance should not be limited to certain types of proceedings. Rather, qualified interpreter services must be provided at all court proceedings, as all court proceedings are considered critical by the DOJ, whether they be civil, criminal, or administrative. Non-party LEP individuals should also be provided with interpreter services when those persons’ “presence or participation in a court matter is necessary or appropriate.”
  2. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on national origin; “applicable civil rights laws require courts . . . to provide meaningful access to all civil, criminal or administrative hearings, at no charge to LEP individuals.” Title VI prohibits court practices that would impair participation in proceedings, such as charging interpreter costs to one or more parties. “Language expenses should be treated as a basic and essential operating expense and not as an ancillary cost. . . . Fiscal pressures . . . do not provide an exemption from civil rights requirements.”
  3. Courtrooms are not the only location in which interpreter assistance may be necessary and required; “the meaningful access requirement extends to court functions that are conducted outside the courtroom as well.” All points of public contact, such as records rooms, filing offices, detention facilities, and anger management classes, should have services available for LEP persons.
  4. Lastly, those individuals involved in a case under court appointment or order, who are required to communicate with LEP parties, “must possess demonstrated bilingual skills or have support from professional interpreters.” Effective communication with court officers, such as criminal defense counsel, court psychologists, probation officers, doctors, and trustees, is essential to provide meaningful access to justice for LEP persons.

The DOJ’s Press Release can be found here.

The DOJ’s letter to chief justices and administrators of state courts can be found here.

Tenth Circuit: Opinions, 8/17/10

The Tenth Circuit on Tuesday issued four published opinions and four unpublished opinions.

Published

In United States v. Magnesium Corp. of America, the Court vacated the district court’s grant of summary judgment for Respondent. Respondent manufactures magnesium and, in so doing, also generates and disposes of waste product. While the United States claims the disposal of the waste product does not comply with regulations, Respondent claims that the EPA created exceptions for such waste product; additionally, Respondent claims that such exceptions, based on the EPA’s own interpretations of its regulations, cannot be changed without conducting notice and comment procedures under the APA. However, the Court found that such interpretations were tentative at best, and no such notice and comment procedures would be required for the EPA to issue new interpretations.

In United States v. Hood, the Court affirmed the district court’s conviction of Petitioner. Petitioner was sentenced to life imprisonment for possession of methamphetamine with intent to distribute, coupled with prior drug charges and a properly filed Notice of Intent to Enhance Punishment. The Court found that the government did not improperly or maliciously destroy evidence. Additionally, the Court found that an initial, non-clerical error in the Notice was not prejudicial.

In Lundstrom v. Romero, the Court affirmed in part and reversed in part the district court’s decision and remanded for further proceedings. Respondent police officers, while conducting a child welfare check, pulled their weapons on Petitioners, ordered them from the home, and left them handcuffed on the front sidewalk while officers searched the home. While the district court found the officers were entitled the qualified immunity from suit, the Court disagreed. Petitioners have alleged facts that demonstrate a violation of their constitutional rights; “while the circumstances the officers confronted initially supported a brief investigatory detention, objectively reasonable officers would not have prolonged the detention and searched the home on the facts before them.”

In United States v. Weiss, the Court affirmed the district court’s conviction of Petitioner for mail fraud, wire fraud, aiding and abetting, and witness tampering. Petitioner claims that the mail fraud counts were not sufficiently essential to his scheme to be actionable; however, while each individual mailing was not essential, taken as a whole, each mailing was essential to the continuation of the scheme. Additionally, Petitioner could have reasonably foreseen “that the use of wire communication facilities would follow in the wake of his fraudulent applications for FHA-insured loans.” Lastly, the court did not violate the Ex Post Facto clause by applying the 2007 Guidelines Manual to Petitioner’s convictions.

Unpublished

United States v. Ramos-Lopez

United States v. Aron, III

Kersh v. Smeler

Harvey v. Addison