VA policy constitutes “cruel and unusual” punishment of our combat veterans

In the summer of 1981, during the Agent Orange litigation evidence of the horrendous treatment of Vietnam combat veterans was uncovered at the Los Angeles VA hospital. When the matter was brought to the attention of the Veterans Administration, their bureaucrats claimed that, “The Vietnam combat veterans will just have to wait their turn; we still have veterans of World War II and the Korean War to take care of!” Protest of any mistreatment by the VA was futile because the VA Administrator the sole and ultimate arbiter of the complaints and was accountable to no one.

Combat veterans as “prisoners” of the VA

In 1981, the Vietnam combat veterans had returned to a society which for many years has responded to any reminder of the Vietnam conflict with an almost reflexive “turning away.” Many veterans were subject to physical and economic restraints which precluded their leaving Veterans Administration facilities and many more veterans, because of soaring medical costs, were, and still are, constrained by lack of finances from seeking competent medical care elsewhere.

Although the Vietnam combat veterans had not been incarcerated for committing a crime, they were just as dependent upon the VA for medical care and treatment as the convicted criminal was dependent upon the Department of Corrections. The Supreme Court had already determined that deliberate indifference to the serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain” prohibited by the 8th Amendment. Like the prison inmates for which the Supreme Court showed so much concern, most combat veterans are forced rely on the VA to meet their medical needs. Like the prison inmates, the Vietnam combat veterans may suffer “physical torture,” “lingering death,” or “pain and suffering” if their medical needs are not met by the Veterans Administration.

The Veterans Administration lawyers argued that what deprives a veteran of the Constitutional right to humane treatment is that the veteran has committed no crime. This caused Chief Judge Feinberg of the United States Court of Appeals for the Second Circuit to observe that “it would certainly be anomalous for this court to hold, on the one hand, that the federal government’s interest in the treatment of its prisoners exceeds its interest in the treatment of its soldiers.”

The lives of some Vietnam combat veterans and the constitutional rights of all the Vietnam combat veterans were being callously disregarded by the Veterans Administration when they were denied “timely and complete” medical care for any disabilities that could reasonably be considered to be service related. A veterans’ right to such medical care was recognized by the Supreme Court and as basis for denying combat veterans the right to sue the United States for injuries arising out of active military service. The Veterans Administration lawyers turned the cloak of immunity into a badge of shame.

In their reluctant action against the Veterans Administration, the Vietnam combat veterans were not raising abstract questions as to the extent of bureaucrat’s ability to define the limits of their own administrative powers. The grievances of the Vietnam combat veterans were literally matters of life and death. Their lives and their deaths.