On May 5, 2008, the Appeals Court of the Federal Circuit issued a 2 to 1 decision overturning the victory by Commander Haas at the Court of Appeals for Veterans Claims (CAVC).  For those who don't know, the case was about the idea that Navy Veterans of Vietnam whose ships often were close to the shores of Vietnam were sprayed with Agent Orange (herbicides) and deserved to be included in the presumptive clause of the Agent Orange Act of 1991.  The Department of Veterans Affairs in promulgating the rules for presumption changed their interpretation between 1991 and 1997 and drew a line that did not include naval veterans in the act, requiring instead a "boots on the ground" caveat for presumption.

Without going in to the whys and wherefores of the case and the majority and dissenting opinions, I would like instead to point out that the real result of the decision is that it makes it very clear that our government is severely broken and we as Americans and Veterans must do something now. It is not about political agendas, philosophies, or parties, and here is why.

In the decision, the majority decision states that there are portions of the case the Court would not rule on, because it was a matter for the Congress and the Department of Veterans Affairs and portions for which the Court reaffirmed the authority of the Department to promulgate rules with deferrence. So in essence, the court says the legislative branch of government must through legislation and oversight, insure that laws are not only correctly interpreted as to intent, but also that oversight by the Congress of an executive branch Department should be used to insure compliance with the laws. 

For all those that have been following the VCS case in San Francisco, the case has clearly done much to show the total failure of the Department of Veterans Affairs to identify, react to, and resolve issues concerning PTSD, TBI, mental health issues and suicides.  It is also clear that this is not a new issue, there were a great many Vietnam vets who also committed suicide, as I am sure there have been from Bosnia-Herzokovina, and the first Gulf war; however, the Department has continually failed to provide the needed assistance with urgency or prompt action.

In point of fact, Representative Filner, Chairman of the House Committee on Veterans Affairs, Senator Akaka, Chairman of the Senate Committee on Veterans Affairs and Senator Murray all demanded Dr. Kussman and Katz's resignation, which was promptly ignored by Secretary Peake.

Additionally, one must consider the fact that the Department told Representative Mitchell, who chairs the House Oversight Committee for Veterans Affairs, to submit an FOIA request for data he requested for his Committee. So as absurd, inept, dishonest, and dysfunctional as the executive branches Department may be, the Secretary may thumb his nose at the oversight attempts of the legislative branch to correct a situation, whether it be mental health issues or Haas.

While it is not certain, the decision by the Federal Circuit Appeals Court to side with the executive branch, portends the possibility that Judge Conti may take a like stance with the failure of the Department to address issues raised in the case, despite it being made apparent by witnesses that the mental health program is little more than a very bad joke, and rule that the Department has the right to address the problem as they see fit.

Of course, the only conclusion one may come to in this exercise is that Veterans have no recourse through either the executive or judicial branches of government, and that the legislative branch is without authority to make them do anything, without the long and ardous process of writing exacting legislation (which is not common), getting it passed through both chambers, and signed by the President.

I ask you all, doesn't this sound like the system is irreparably broken to you?