Full opinion text
MEMORANDUM OF DECISION, FINDINGS OF FACT AND CONCLUSIONS OF LAW SAMUEL CONTI, District Judge. I. INTRODUCTION As a preliminary summary to this decision, the Court concludes: In reviewing each of the items of relief requested by Plaintiffs, the grievances of Plaintiffs are misdirected. The remedies to the problems, deficiencies, delays and inadequacies complained of are not within the jurisdiction of this Court. Rather, this authority lies with Congress, the Secretary of the Department of Veterans Affairs (“VA”), the adjudication system within the VA, and the Federal Circuit. Congress has bestowed district courts with limited jurisdiction. Congress has specifically precluded district courts from reviewing veterans’ benefits decisions and has entrusted decisions regarding veterans’ medical care to the discretion of the VA Secretary. The Court can find no systemic violations system-wide that would compel district court intervention. The broad injunctive relief that Plaintiffs request is outside the scope of this Court’s jurisdiction. The statutes and caselaw are quite clear as to the extent of this Court’s authority. Among them is 38 U.S.C. § 511, which states in part: “The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to Veterans or the dependents or survivors of veterans.... [T]he decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court....” In addition, 38 U.S.C. § 1710(a)(1) provides that the medical care veterans receive is to be determined by the Secretary, and under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., judicial review is prohibited where actions are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). For the foregoing and following reasons, Plaintiffs’ requested relief is DENIED. The Court now proceeds with its finding of facts and conclusions of law. II. BACKGROUND Veterans for Common Sense and Veterans for Truth (“Plaintiffs”) are non-profit organizations devoted to improving the lives of veterans. Plaintiffs filed the present lawsuit in July 2007, seeking declaratory and injunctive relief against the VA, alleging that the manner in which the VA provides mental health care and the procedures for obtaining veteran disability benefits violate various statutory and constitutional rights. Plaintiffs’ Complaint seeks declaratory relief for the following: (1) denial of due process in violation of the Fifth Amendment; (2) denial of access to the courts in violation of the First and Fifth Amendments; (3) violation of 38 U.S.C. § 1710(e)(1)(D) relating to medical care for returning veterans; and (4) violation of Section 504 of the Rehabilitation Act. Compl., Docket No. 1, ¶¶ 258-72. In addition, Plaintiffs’ fifth cause of action seeks injunctive relief. Id. ¶¶ 273-78. On January 10, 2008, this Court issued an Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss (“Motion to Dismiss Order”). Docket No. 93. In that Order, the Court held that Plaintiffs’ first, second, and third claims survived Defendants’ various challenges, including standing, sovereign immunity, and subject matter jurisdiction. The Court dismissed Plaintiffs’ fourth claim. After Defendants submitted their Motion to Dismiss, Plaintiffs filed a Motion for Preliminary Injunction. Docket No. 88. The Court scheduled a hearing on this motion and from March 3 through March 6, the Court heard testimony and received evidence. At the close of the hearing, in light of the issues raised by Plaintiffs and the importance of addressing Plaintiffs’ allegations promptly, the Court continued the matter and set an expedited schedule for discovery and for consideration of Plaintiffs’ Request for Permanent Injunction and Declaratory Relief. A bench trial was then held from April 21 through April 30, 2008. After hearing testimony and argument during almost three weeks of trial and reviewing the parties’ voluminous submissions, two things have become clear to the Court: the VA may not be meeting all of the needs of the nation’s veterans, and the remedies proposed by Plaintiffs are beyond the power of this Court. III. LEGAL FRAMEWORK A. Standing 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 stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). For Plaintiffs’ members to have standing to sue in their own right, they must satisfy three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). 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 fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. (internal quotation marks, citations, and alterations omitted). “Since [these elements] are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. at 561, 112 S.Ct. 2130. Thus, at the final stage of the proceedings, any disputed facts “must be supported adequately by the evidence adduced at trial.” Id. at 561, 112 S.Ct. 2130 (internal quotation marks omitted). B. Sovereign Immunity “The United States must waive its sovereign immunity before a federal court may adjudicate a claim brought against a federal agency.” Rattlesnake Coalition v. U.S. Envtl. Prot. Agency, 509 F.3d 1095, 1103 (9th Cir.2007) (citing United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)). As discussed in the Conclusions of Law, various of Plaintiffs’ challenges fail because of the lack of a valid waiver of sovereign immunity. The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, provides such a waiver in certain circumstances and “permits a citizen suit against an agency when an individual has suffered ‘a legal wrong because of agency action’ or has been ‘adversely affected or aggrieved by agency action within the meaning of a relevant statute.’ ” Id. (quoting 5 U.S.C. § 702). “This provision contains two separate requirements.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). “First, the person claiming a right to sue must identify some ‘agency action’ that affects him in the specified fashion....” Id. Second, “the party seeking review under § 702 must show that he has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of the relevant statute.” Id. at 883, 110 S.Ct. 3177 (internal quotation marks omitted). 1. Agency Action “Agency action” is “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act....” 5 U.S.C. § 551(13). The APA defines “agency rule” as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy....” Id. § 551(4). As an initial matter, Plaintiffs argue that their constitutional claims are not limited by the requirement that they challenge an agency action. In support of their argument, they rely on Presbyterian Church v. United States, 870 F.2d 518 (9th Cir.1989). In analyzing whether there was valid waiver of sovereign immunity, the court in Presbyterian Church held that “§ 702’s waiver of sovereign immunity is not limited to suits challenging ‘agency action.’ ” Id. at 525 n. 8. Although Presbyterian Church has not been overruled, its vitality has been called into question. As this Court noted in its Motion to Dismiss Order, in Gallo Cattle Co. v. Department of Agriculture, 159 F.3d 1194 (9th Cir.1998), the Ninth Circuit held that “the APA prescribes standards for judicial review of an agency action.... ” Id. at 1198. The tension between Presbyterian Church and Gallo Cattle was recognized in Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir.2006), where the court stated: Under The Presbyterian Church, § 702’s waiver is not conditioned on the APA’s “agency action” requirement. Therefore, it follows that § 702’s waiver cannot then be conditioned on the APA’s “final agency action” requirement.... But that is directly contrary to the holding in Gallo Cattle where we stated that “the APA’s waiver of sovereign immunity contains several limitations,” including § 704’s final agency action requirement. Id. at 809 (citing Gallo Cattle, 159 F.3d at 1198). Although the court in Gros Ventre declined to resolve the conflict between the two cases, it did note that it “saw no way to distinguish Presbyterian Church from Gallo Cattle.” Id. at 809. Plaintiffs urge that the court in Gros Ventre “may have been mistaken in suggesting that [these two cases] are not distinguishable.” Pis.’ Post-Trial Br., Docket No. 229, at 6. Plaintiffs argue that because Presbyterian Church dealt with constitutional violations, while Gallo Cattle addressed statutory violations, it should be inferred that constitutional claims are not constrained by the requirement that a plaintiff, for a valid waiver of sovereign immunity under the APA, challenge an agency action. Plaintiffs’ argument fails for several reasons. First and foremost, the Ninth Circuit found this distinction unremarkable and held that the cases were not distinguishable. Gros Ventre, 469 F.3d at 809. This Court is constrained by that holding. Second, the court in Presbyterian Church did not rely on the fact that the claims before it were constitutional, rather than statutory. See Presbyterian Church, 870 F.2d at 524-26. If such a distinction were meaningful, as Plaintiffs suggest, then the court would have so noted. Instead, in reaching its conclusion about the limits of § 702’s waiver, the court relied on the legislative history and on the plain language of the statute itself. Id. Third, subsequent to Presbyterian Church, the Supreme Court decided National Wildlife Federation. In National Wildlife Federation, the Court made clear that waiver of sovereign immunity under § 702 is constrained by the provisions contained in § 704. The Court stated: “[T]he person claiming a right to sue [under § 702] must identify some ‘agency action’ that affects him in the specified fashion....” 497 U.S. at 882, 110 S.Ct. 3177. The Ninth Circuit, more recently, reiterated this proposition, holding that when a suit is brought against an agency pursuant to a waiver of sovereign immunity under the APA, the suit must challenge agency action. Rattlesnake Coalition, 509 F.3d at 1103. Finally, the Court notes that it has already ruled on this issue, stating, in its Motion to Dismiss Order, that “waiver of sovereign immunity under § 702 of the APA is limited by § 704.” Mot. to Dismiss Order at 10. Nonetheless, as Plaintiffs raised a new argument in their Posh-Trial Brief, the above discussion was warranted. For these reasons, Plaintiffs must challenge an “agency action” to establish a valid waiver of sovereign immunity. In addition, when a claim is brought pursuant to the general review provisions of the APA, rather than under a private right of action or authorization for judicial review under a substantive statute, “the ‘agency action’ in question must be ‘final agency action.’ ” Nat’l Wildlife Fed’n, 497 U.S. at 882, 110 S.Ct. 3177 (quoting 5 U.S.C. § 704); see also Rattlesnake Coalition, 509 F.3d at 1103; Ecology Ctr. v. U.S. Forest Serv., 192 F.3d 922, 925 (9th Cir.1999). Neither party argues that the agency action in question is made reviewable by any statute. Accordingly, the additional limitations of § 704 also apply to the present case, and Plaintiffs must show that the agency action they challenge is not only “final agency action” but also that there is no adequate alternative remedy. 5 U.S.C. § 704; Nat’l Wildlife Fed’n, 497 U.S. at 882, 110 S.Ct. 3177; Gallo Cattle, 159 F.3d at 1198. Finally, the APA provides that a “reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). “[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (emphasis in original). “Review of an agency’s failure to act has been referred to as an exception to the final agency action requirement.” Ctr. for Biological Diversity v. Abraham, 218 F.Supp.2d 1143, 1157 (N.D.Cal.2002). “Courts have permitted jurisdiction under the limited exception to the finality doctrine only when there has been a genuine failure to act.” Ecology Ctr., 192 F.3d at 926. The Ninth Circuit “has refused to allow plaintiffs to evade the finality requirement with complaints about the sufficiency of an agency action dressed up as an agency’s failure to act.” Id. (internal quotation marks omitted). a. Final Agency Action An agency action is “final” under the APA where two conditions are met: (1) the action “mark[s] the consummation of the agency’s decisionmaking process ...&emdash;it must not be of a merely tentative or interlocutory nature,” and (2) the action is one “by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citations and quotation marks omitted). b. Adequate Alternative Remedy In addition to final agency action, § 704 also requires that “there is no other adequate remedy in a court” for there to be a valid waiver of sovereign immunity under the APA. 5 U.S.C. § 704. 2. Legal Wrong/Adverse Effect “[T]he party seeking review under § 702 must [also] show that he has suffered legal wrong because of the challenged agency action or is adversely affected or aggrieved by that action within the meaning of the relevant statute.” Nat’l Wildlife Fed’n, 497 U.S. at 883, 110 S.Ct. 3177 (internal quotation marks omitted). Neither party disputes that this prong of APA waiver of sovereign immunity is satisfied. C. Jurisdictional Limitations of the VJRA The VJRA contains several statutory provisions that preclude review of various challenges to the VA in federal district courts. Although this issue was also dealt with extensively in the Motion to Dismiss Order, it too must be revisited. 1. § 502 Pursuant to 38 U.S.C. § 502, “VA rule-making is subject to judicial review only in the Federal Circuit.” Chinnock v. Turnage, 995 F.2d 889, 893 (9th Cir.1993); see also Preminger v. Principi, 422 F.3d 815, 821 (9th Cir.2005) (stating “Congress has explicitly provided for judicial review of direct challenges to VA rules and regulations only in the Federal Circuit”). Thus, any challenge by Plaintiffs to VA regulations is not reviewable in this Court. 2. § 511 38 U.S.C. § 511 states, in part: The Secretary [of Veterans Affairs] shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise. 38 U.S.C. § 511(a). As previously held by various courts, including this one in its Motion to Dismiss Order, § 511 does not strip district courts of the ability to hear facial constitutional challenges to the VA benefits system. See Mot. to Dismiss Order at 20-30; see also Larrabee by Jones v. Derwinski, 968 F.2d 1497, 1501 (2d Cir.1992) (stating “district courts continue to have jurisdiction to hear facial challenges of legislation affecting veterans’ benefits”) (internal quotation marks and emphasis omitted); Broudy v. Mather, 460 F.3d 106, 114 (D.C.Cir.2006) (stating “district courts have jurisdiction to consider questions arising under laws that affect the provision of benefits as long as the Secretary has not actually decided them in the course of a benefits proceeding”); Beamon v. Brown, 125 F.3d 965, 972-73 (6th Cir.1997) (stating “district court jurisdiction over facial challenges to acts of Congress survived the statutory revisions that established the CVA”). Thus, while review of individual benefits decisions is clearly precluded by § 511, facial constitutional challenges are not. In addition, as this Court held in its Motion to Dismiss Order, where Plaintiffs challenge VA decisions that were made outside the course of a benefits proceeding, § 511 does not necessarily preclude review in this Court. For reasons discussed below, however, it is unnecessary to determine the precise contours of § 511’s preclusive effect. Suffice it to say, § 511 does not provide the extremely broad preclusive effect advocated by Defendants. D. Due Process 1. Delay Under the APA, a district court “shall ... compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). In assessing whether agency action has been unreasonably delayed or withheld, courts look to the so-called TRAC factors. Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.1997). These factors are: (1) the time agencies take to make decisions must be governed by a “rule of reason” [;] (2) where Congress 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 activities of a higher or competing priority[;] (5) the court should also take into account the nature and extent of the interests prejudiced by the delay[;] and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.” Id. at 507 n. 7 (quoting Telecomms. Research & Action v. F.C.C., 750 F.2d 70, 79-80 (D.C.Cir.1984)) (modifications in original). 2. Other Due Process Violations Plaintiffs also argue that the medical clinical appeals process and the benefits adjudication process violate veterans’ Due Process rights under the Fifth Amendment. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). 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 extra safeguards, and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or procedural requirement would entail. Id. “Procedural due process requires adequate notice and an opportunity to be heard.” Kirk v. U.S. Immigration and Naturalization Serv., 927 F.2d 1106, 1107 (9th Cir.1991). It does not, however, “always require an adversarial hearing.” Hickey v. Morris, 722 F.2d 543, 549 (9th Cir.1983). IV. FINDINGS OF FACT 1.Plaintiffs are two non-profit organizations that represent the interests of veterans. RT 661:10-666:10; 811:20-812:6. Veterans United for Truth is an advocacy organization with between 1,200 and 1,300 members hailing from 40 states. Id. 661:11-13; 664:20; 665:18-19. A large percentage of these members are enrolled with the VA, many of them suffer from a service-connected disability, including Post Traumatic Stress Disorder (“PTSD”), and many have sought benefits within the VA. Id. 665:22-666:7; 674:1-4. Veterans for Common Sense, based in Washington D.C., represents approximately 12,000 members. Id. 811:20-812:1. Among these ranks are members who receive services from the VA for mental health issues, including those who have received treatment from the VA for depression and PTSD, and members who have served in Iraq or Afghanistan. Id. 813:24-814:9. In addition, within the last year, members of Veterans for Common Sense have experienced problems with delays in processing benefits claims and delays in receiving health care. Id. 813:17-19; 815:4-816:16. Veterans for Common Sense devotes more than half of its resources to advocating for better veterans’ health care and benefits. Id. 813:12-16. 2. The mission of the VA is: “To care for him, who has borne the battle and for his widow and for his orphan.” PIRT 245:4-6. Defendants concede that the VA not only has a “broad obligation,” but also a “moral imperative [ ] to provide medical care to the men and women who have served our country.” Defs.’ Proposed Findings of Fact and Conclusions of Law (“Defs.’ Post-Trial Brief’), Docket No. 230, at 11. 3. The VA has approximately 230,000 employees and 1,400 sites of care. RT 778:19-24. The VA is comprised of three major organizations: the Veterans Health Administration (“VHA”), the Veterans Benefits Administration (“VBA”), and the National Cemetery Administration (“NCA”), only the first two of which are relevant to the present case. 4. There are approximately 25 million veterans in the United States today. Ex. 1247. As of May 2007, between 5 and 8 million of these veterans were enrolled with the VA. PIRT 254:23; Exs. 133, 357. 5. On any given night in the United States, it is estimated that 154,000 veterans are homeless. RT 503:19-20. A. Veterans Health Administration 6. The VHA, one of the largest healthcare systems in the world, is divided into approximately 21 geographical areas called Veteran’s Integrated Service Networks (‘VISNs”). PIRT 623:16-17; RT 703:1. Each VISN contains a number of VA hospitals, also known as medical centers, of which there are 153 throughout the country. PIRT 245:17; 246:6; 623:16-17. Each VISN also has numerous community-based outpatient clinics (“CBOCs”), of which, nationwide, there are approximately 800. Id. 247:2-7. CBOCs typically provide, at a minimum, primary health care. Id. 247:10-11. Most veterans enrolled in the VA receive their care at CBOCs. Ex. 357; RT 1318:15-17. 7. The VHA also has approximately 200 Readjustment Counseling Centers, known as “Vet Centers.” PIRT 247:24-25. Vet Centers are small, community-based counseling centers, with average staff sizes of four to six people. Id. 55:7-9. 1. Veterans’ Mental Health and Suicide Rates 8. More than 1.6 million men and women have served in Iraq and/or Afghanistan since October 2001. Answer, Docket No. 110, ¶ 7; Ex. 1253 at iii. As of December 31, 2007, 803,757 veterans of Iraq and Afghanistan were eligible for VA health care. Answer ¶ 7; Ex. 420 at 5. Defendants concede that veterans have complained of long wait times for PTSD treatment and difficulties in obtaining mental health care in rural areas. Answer ¶ 10. 9. Approximately one out of every three soldiers returning from Iraq was seen in the VA for a mental health visit within a year of their return. RT 220:7-11; PIRT 219:3-220:17. PTSD is a leading diagnosis for the mental health disorders of veterans returning from Iraq. PIRT 216:17. 10. Dr. Arthur Blank testified for Plaintiffs as an expert in psychiatry, specializing in treatment of veterans with mental health problems, including PTSD. PIRT 59:23-62:3. Dr. Blank spent 10 years as a teaching and supervising psychiatrist at the Westhaven VA Medical Center, was a national director of the Vet Centers at the VA headquarters in Washington from 1982-1994, and was the chief psychiatrist on the PTSD team at the Minneapolis VA from 1994-1997. Id. 54:19-25; 55:1-3; 57:18-23. 11. Dr. Blank testified that PTSD is a “psychological condition that occurs when people are exposed to extreme, life-threatening circumstances, or [when they are in] immediate contact with death and/or gruesomeness, such as [what] occurs in combat, severe vehicular accidents or natural disasters. It produces a complex of psychological symptoms which may endure over time.” PIRT 62:25-63:6. 12. Dr. Gerald Cross, the Deputy Under Secretary for Health in the VA, testified that the high rates of PTSD among Iraq veterans are the result of various factors, including multiple deployments, the inability to identify the enemy, the lack of real safe zones, and the inadvertent killing of innocent civilians. PIRT 216:23-218:2. 13. In 2008, Dr. Robert Rosenheck, Director of VA’s Northeast Program Evaluation Center (“NEPEC”), issued a report entitled “Recent Trends in VA Treatment of Post-Traumatic Stress Disorder and other Mental Disorders.” Exs. 442, 444. The report found that during 2003-2005, there was a 232% increase of PTSD diagnosis for veterans born after 1972. Ex. 442 at 1722. In addition, while the number of veterans diagnosed with PTSD doubled between 1997 and 2005, “the number of clinic contacts per veteran per year declined steadily and relatively uniformly across the years.” Id. at 1722,1723. 14. A study released on April 17, 2008, by the RAND Corporation found that 18.5% of U.S. service members who have returned from Iraq and Afghanistan currently have PTSD. Ex. 1191 at 1. The RAND study also found that approximately half of those who need treatment for PTSD seek it, and of those who actually receive treatment, only slightly more than half get “minimally adequate care.” Id. The study estimates that 300,000 soldiers now deployed to Iraq and Afghanistan “currently suffer PTSD or major depression.” Ex. 1253 at xxi. 15. Studies indicate that the suicide rate among veterans is significantly higher than that of the general population. RT 274:15-275:19. One study, the “Katz Suicide Study,” dated February 21, 2008, found that suicide rates among veterans are approximately 3.2 times higher than the general population. Id.; Ex. 1183. 16. Dr. Stephen Rathbun, the interim head of the Department of Epidemiology and Biostatistics at the University of Georgia, testified as Plaintiffs’ expert in biosta-tistics. PIRT 303:13-18. Dr. Rathbun analyzed data provided to him by CBS News and concluded that, in 2005, the last year for which suicide data was available, the suicide rate among male veterans aged 20 to 24 years old was three or four times the non-veteran rate in that group. Id. 304:11-17; 307:1; 310:9-311:2. Internal VA emails state that Dr. Rathbun’s methodology was “defensible” and “appears to be correct.” Exs. 1306,1248. 17. Dr. Ira Katz, Deputy Chief of Patient Care Services Office for Mental Health for the VA, testified that his primary job is to direct mental health services at the VA. PIRT 736:24-25. Suicide prevention is an important component of his job. Id. 738:21-24. 18. Dr. Katz, in an internal VA email dated December 15, 2007, wrote that “[tjhere are about 18 suicides per day among American’s 25 million veterans.” Ex. 1247. The email further states that the ‘VA’s own data demonstrate 4-5 suicides per day among those who receive care from us.” Id. 19. In another internal VA email dated February 13, 2008, Dr. Katz wrote: “Shh! Our suicide prevention coordinators are identifying about 1,000 suicide attempts per month among the veterans we see in our medical facilities. Is this something we should (carefully) address ourselves in some sort of release before someone stumbles on it?” Ex. 1249. 2. VHA Budget 20. Paul Kearns, the VHA’s Chief Financial Officer, testified that the VHA is not currently facing a budget crisis and has adequate money to “meet the mission requirements.” PIRT 574:13-18. Dr. Cross agreed with this assessment and testified that the VA has sufficient funding to carry out its mission of ensuring that veterans have the medical care they need. Id. 225:12-23. Dr. Katz testified that the VHA’s current budget provides enough funding to cover a “worst-case scenario” of an influx of veterans returning from Iraq and Afghanistan with mental illness. Id. 787:17-20. 21. In 2006, VHA spending on mental health care was approximately $2.4 billion. PIRT 555:17020. In 2007, this figure rose to $3.2 billion. Id. 557:8-10. In 2008, the VHA is on target to spend $3.5 billion on mental health care. Id. 558:2-3. The estimated budget for 2009 is $3.9 billion. RT 774:25-775:3. 22. Over the past few years, the VA has hired more than 3,800 new mental health staff. PIRT 739:12-13. There remain 500-600 unfilled mental health staff positions, out of a total of 16,500. Id. 419:12-22. In addition, for general health staff, the VA has approximately 1,400 unfilled physician positions out of 21,000 and 2,400 unfilled nursing positions out of 40,-000. Id. 224:2-7; 231:9-13. 28.Dr. Rosenheck, Director of VA’s NEPEC, concluded that for every $100 increase in per capita outpatient mental health spending, there was an associated 6% decrease in the rate of suicide. Ex. 446 at 118. 3. Depression, PTSD, and Suicide 24. Dr. Ronald Maris, an expert witness for Plaintiffs in suicidology, testified that depression and PTSD are two of the leading risk factors for suicide. RT 270:3-10; 273:1-276:24. In general, Dr. Maris was highly critical of the manner in which the VA is treating suicidal or potentially suicidal veterans. Id. 25. Dr. Alan Berman testified as an expert witness for Defendants in suicidolo-gy. RT 1272:4-10. Dr. Berman agreed that depression is a leading risk factor for suicide and that PTSD is a “significant risk factor.” Id. 1322:25-1323:6. Dr. Berman also agreed that it is important to treat PTSD on a timely basis, and that PTSD, if not properly treated, can lead to depression, and that depression and PTSD, if not properly treated, increase the risk of suicide. Id. 13237-20. Dr. Berman agreed that soldiers returning from Iraq have an elevated rate of suicide. Id. 1324:1-6. Dr. Berman testified that the quality of the VA suicide prevention program is “terrific.” Id. 1294:7-10. 26. Dr. Blank testified that there is a strong connection between PTSD and suicide. RT 69:23-70:6. He also testified that depression is one outcome of untreated PTSD and that depression increases the risk of suicide. Id. 70:21-25; 71:1-7. Dr. Blank was critical of the VA’s treatment methods for veterans with PTSD. Id. 83:14-22; 83:10-13. 4. Mental Health Strategic Plan 27. In July 2004, the VA developed and adopted the Mental Health Strategic Plan (“MHSP”). Ex. 398. The MHSP consists of 265 recommendations and was developed as a five year plan. RT 777:22-24; PIRT 477:24-478:1. It currently is in its fourth year of implementation. Id. Plaintiffs concede that the MHSP is a good plan. RT 705:14-706:7. 28. In fiscal year 2006, the VHA spent approximately $118 million out of a targeted $200 million on the MHSP. PIRT 553:1-4. In fiscal year 2007, the VHA spent approximately $325 million on the MHSP and for fiscal year 2008 the VHA is on target to increase this spending to $370 million. Id. 553:5-554:6. 29. One of the goals of the MHSP is to “[r]educe suicides among veterans.” Ex. 398 at A-2. Among the initiatives intended to help reduce veteran suicides are ones to “[djevelop a national systemic program for suicide prevention” and to “develop[] a plan to educate all staff that interact with veterans, including clerks and telephone operators, about responding to crisis situations involving at-risk veterans.” Id. at A-2. Other key components of the MHSP are to develop “methods for tracking veterans with risk factors for suicide,” and to “Require annual screening for Mental Health and Substance Abuse Disorders.” Id. at A-29. In addition, the MHSP called for mental health screening for “[e]very returning service man/woman ... as part of the post-deployment and separation medical examination.” Id. at A-5. 30. Dr. Katz testified that his office is responsible for “strategic planning about program development.” PITR 737:4-5. He further testified that he was hired “specifically to oversee the implementation of the 2004, 2005 Mental Health Strategic Plan.” Id. 738:5-6. 31. On May 10, 2007, the VA Office of Inspector General (“OIG”) issued a report titled “Implementing VHA’s Mental Health Strategic Plan Initiatives for Suicide Prevention” (“May 2007 OIG Report”). Ex. 133. This report concluded that many components of the MHSP had not been implemented. Id. Initiatives such as screening veterans at risk, a suicide prevention database, emerging best practices for treatment, and education programs were all still at the “Pilot Stage” three years after the MHSP was implemented. Id. at 53. 32. The May 2007 OIG Report also found 61.8% of VA facilities had not implemented a suicide prevention strategy to target veterans returning from Iraq and Afghanistan. Ex. 133 at 37. In addition, 42.7% of VA facilities had not implemented a program to educate first-contact, non-medical personnel about how to respond to crisis situations involving veterans at risk for suicide. Id. at 46. 70% of VA facilities had not implemented a tracking system for veterans with risk factors for suicide. Id. at 33. 16.4% of VA facilities had not implemented a system to facilitate referral of veterans with risk factors for suicide. Id. at 30. 5. Feeley Memo 33. William Feeley has been the Deputy Under Secretary for Health Operations and Management since February 10, 2006. Ex. 1259 at 1, Feeley Depo. Tr. Mr. Fee-ley, in his own words, is “responsible for the 21 [VISN] network directors in implementing policy and procedure that comes in, that gets developed at headquarters.” Id. Mr. Feeley, as the number three person in the VHA, is tasked with ensuring that the VA Medical Centers and CBOCS comply with the “policies and the rules and regulations of the organization.” Id. 2. He testified that when it comes to compliance in implementing procedures, the “[b]uek stops with me.” Id. 34. On June 1, 2007, Mr. Feeley issued a memorandum to all VISN directors regarding “Mental Health Initiatives” (“the Feeley Memo”). Ex. 1259 at 4; Defs.’ Ex. 513. The purpose of the Feeley Memo was to direct the VISN directors to begin implementing the specific initiatives of the mental health plan. Ex. 1259 at 8; Defs.’ Ex. 513. According to Mr. Feeley, even though the MHSP was developed in 2004, he was unaware of whether the VHA had actually begun to implement the plan prior to June 2007. Ex. 1259 at 4. Furthermore, Mr. Feeley was unaware of whether the VISN directors were supposed to begin implementing the MHSP prior to his Memo. Id. Mr. Feeley conceded that he is unaware of “whether there’s compliance with the tracking of veterans with risk factors for suicide,” but agreed that such tracking, in addition to being part of the MHSP, was “a good suggestion.” Id. at 7-8. 35. Part of the Feeley Memo states that veterans who present to a Medical Center or CBOC for the first time with mental health issues should be evaluated within 24 hours. Ex. 1259 at 11; Defs.’ Ex. 513. Mr. Feeley conceded that he has no way of knowing whether any of the Medical Centers or CBOCS have implemented this initial 24 hour evaluation directive. Ex. 1259 at 12. Mr. Feeley testified that Drs. Zeiss and Katz were going to perform site visits to ensure compliance with this directive. Id. at 11. 36. Dr. Antoinette Zeiss is the Deputy Chief Consultant for the Office of Mental Health Services. PIRT 395:11-12. She has held this position since September of 2005 and she reports to Dr. Katz. Id. 395:13-16. Her section’s responsibilities include “oversight for mental health programs in VA. That means working with those above [her section] on policies, working on consultation [with] the field about appropriate implementation of programs, and particularly implementing the Mental Health Strategic Plan.” Id. 3961-6. Since the Feeley Memo was issued in June 2007, Dr. Zeiss testified that as of March 5, 2008, only two site visits to ensure implementation had been conducted. Id. 457:19-25. The first of these visits occurred approximately three weeks prior to Dr. Zeiss’s testimony. Id. 457:9-12. Other than these site visits, Dr. Zeiss has seen no reports that would otherwise indicate whether the Feeley Memo directives were being implemented system-wide. Id. 456:20-23. 37. The Feeley Memo also directs that a veteran who seeks an appointment for mental health issues be given a follow-up appointment within 14 days. RT 443:1-4; PIRT 481:12-17; Defs.’ Ex. 513. 38. The VHA does not have the staff or resources to directly track whether the 24 hour evaluation policy outlined in the Fee-ley Memo is being implemented system-wide. RT 446:18-21. 39. Instead, in order to monitor compliance with the Feeley Memo directives, the VA uses two tangential metrics. RT 449:1-452:23. The first metric tracks the number of mental health providers hired at medical facilities within a VISN and the second tracks whether medical centers are complying with the requirement that a veteran who presents with mental health needs be given an appointment within 14 days. Id. 443:1-23; 446:6-25; 454:10-17. 6. Delays in Mental Health Care 40. The May 2007 OIG Report found delays in obtaining referrals for depression and PTSD. Ex. 133 at 31. Where a primary care provider refers a patient with symptoms of moderate severity for depression, 40% of VA facilities reported same-day evaluation, 24.5% reported a wait time of 2-4 weeks and 4.5% reported a wait time of 4-8 weeks. Id. The wait times for PTSD referrals were longer, with only 33.6% reporting same-day evaluation, 26% reporting 2-4 weeks, and 5.5% 4-8 weeks. Id. at 31-32. Nonetheless, the majority of veterans of Iraq and Afghanistan are being seen at clinics offering mental health services within 30 days. PIRT 594:11-595:16; Defs.’Ex. 514. 41. On September 10, 2007, the VA’s OIG issued a report titled, “Audit of the Veterans Health Administration’s Outpatient Waiting Times” (“September 2007 OIG Report”). Ex. 169. This report was prepared at the request of the U.S. Senate Committee on Veterans Affairs. Id. at i. The purpose of the report was to follow up on a July 2005 audit that found that the “VHA did not follow established procedures when scheduling medical appointments for veterans seeking outpatient care.” Id. The July 2005 report made eight recommendations for corrective action, five of which the September 2007 OIG Report found had not been implemented. Id. atvi. 42. The September 2007 OIG Report found that “25 percent[] of the appointments we reviewed had waiting times over 30 days when we used the desired date of care that was established and documented by the medical providers in the medical records.” Ex. 169 at ii. The report also found that “72 percent[] of the 600 appointments for established patients had unexplained differences between the desired date of care documented in medical records and the desired date of care the schedulers recorded.... ” Id. at iii. In addition, the report concluded that “[o]f the 100 pending consults, 79 (79 percent) were not acted on within the 7-day requirement and were not placed on the electronic waiting list. Of this number, 50 veterans had been waiting over 30 days without action on the consult request.” Id. at vi. 43. The September 2007 OIG Report found that schedulers were not adequately trained. Ex. 169 at vi. Of 113 schedulers interviewed, 47% had no training on consults within the last year, and 53% had no training on the electronic waiting list in the last year. Id. Furthermore, the report stated the following: “While waiting time inaccuracies and omissions from electronic waiting lists can be caused by a lack of training and data entry errors, we also found that schedulers at some facilities were interpreting the guidance from their managers to reduce waiting times as instruction to never put patients on the electronic waiting list. This seems to have resulted in some ‘gaming’ of the scheduling process.” Id. The report concluded that “VHA’s method of calculating the waiting times of new patients understates the actual waiting times,” id. at 7, and that even though the “VHA has established detailed procedures for schedulers to use when creating outpatient appointments[, it] has not implemented effective mechanisms to ensure scheduling procedures are followed.” Id. at 9. 44. As of April 2008, according to VHA’s data, there are approximately 85,-450 veterans on VHA waiting lists for mental health services. Ex. 1244. As of February 1, 2008, there were 37,902 veterans having to wait more than 30 days for any type of medical appointment, not just one for mental health issues. Defs.’ Ex. 528. According to the VA, as recently as February 2007, there were as many as 182,141 veterans waiting more than 30 days for a medical appointment. Id. 45. Dr. Jeffery Murawsky is the Chief Medical Officer for VISN Number 12, Great Lakes Region. PIRT 623:12-13. Dr. Murawsky testified that in his VISN, as of February 15, 2008, there were no Iraq or Afghanistan veterans on the wait list for a mental health appointment. Id. 635:7-9. Dr. Murawsky also testified that a veteran is not placed on the wait list until after he or she has had to wait 30 days. Id. 635:10-19. 46. In February 2005, the U.S. Government Accountability Office (“GAO”), prepared a report for the ranking Democratic Member of the House Committee on Veterans’ Affairs. Ex. 37. The report was titled, “VA Should Expedite the Implementation of Recommendations Needed to Improve Post-Traumatic Stress Disorder Services.” Id. Although the report began by noting that the VA “is a world leader in PTSD treatment and offers PTSD services to eligible veterans,” id. at 1, it was also critical of the VA’s lack of progress in implementing various recommendations, including some dating as far back as 1985. Id. at 5. For example, the report found that the VA had not developed referral mechanisms in all CBOCs that do not offer mental health services. Id. at 26, 27. The report summarized: ‘VA’s delay in fully implementing the recommendations raises questions about VA’s capacity to identify and treat veterans returning from military combat who may be at risk for developing PTSD, while maintaining PTSD services for veterans currently receiving them.” Id. at 3. 47. Dr. Frances Murphy was the Deputy Under Secretary of Health Policy Coordination within the VA from October 2002 through April 2006. Ex. 1262 at 1. Dr. Murphy had helped draft the MHSP. Id. at 4. In the fall of 2005, Dr. Murphy informed then-Secretary Nicholson that there were “still significant gaps in delivery of substance abuse care, and that in certain areas of the country mental health access was still not meeting VHA standards.” Id. at 4. In a speech on March 29, 2006, Dr. Murphy, while acknowledging that the VA “has achieved benchmark performance in quality, patient satisfaction, patient safety and coordination of healthcare services,” also noted that “[i]n some communities, VA clinics do not provide mental health or substance abuse care or waiting lists render that care virtually inaccessible.” Ex. 397 at 6, 7. In February 2006 Dr. Murphy’s office was eliminated. Ex. 1262 at 1, 2. 48. Every VA Medical Center now has a Suicide Prevention Coordinator. RT 1280:21-23. The Coordinators are charged with the task of overseeing the clinical care and tracking at-risk patients. Id. In preparation for their roles as Suicide Prevention Coordinators, the Coordinators, who are all mental health professionals, received only two and one half days of special training, which took place at the University of Rochester School of Medicine’s center for the study of suicide. Id. 1290:6-11. As Defendants’ expert Dr. Berman testified, the primary role of the Coordinators includes “identifying or making sure that suicidal patients are identified, in tracking, that they are getting the appropriate treatment, in educating and training the staff of the medical center, in promoting suicide awareness and education.” Id. 290:18-23. As of May 2007, only 30% of the facilities polled had suicide tracking systems. Ex. 133 at 33. 49. The Suicide Prevention Coordinators are only at the 153 VA medical centers, and are not located at any of the roughly 800 CBOCs. RT 1318:10-1319:3. Most veterans receive their care at CBOCs. Ex. 357; RT 1318:15-17. 50. CBOCS only provide outpatient services during regular business hours, generally Monday through Friday from 8:00 a.m. until 4:30 or 5:00 p.m. PIRT 169:22-25. 51. In July 2007, the VA implemented a national Suicide Prevention Hotline. PIRT 746:12-749:9. Between July 2007 and January 2008, the Hotline received 26,000 calls, of which 9,000 were confirmed to be from veterans and 900 from the families of veterans. Id. 778:1-9. In that same time period, the Suicide Prevention Hotline made approximately 2000 referrals of veterans seeking help to the Suicide Prevention Coordinators. Id. 745:7-14. 7. Medical Appeals Process 52. Veterans may appeal clinical medical decisions that affect eligibility determinations. For example, a veteran may appeal a clinical determination by a nurse or doctor but a veteran may not appeal the decision of an appointment scheduler. PIRT 713:2-714:13. If a veteran is told that the next available appointment is two weeks away but the veteran wants something sooner, the veteran cannot appeal this type of administrative scheduling decision. Id. 712:4-8. If, however, the veteran is told by a nurse or doctor that it is ok for him to wait those two weeks before his appointment — i.e., if a nurse or doctor makes a clinical decision regarding the veteran’s need for access to health care— then the veteran may appeal this decision. Id.; Id. 656:25-657:25. The veteran appeals this decision by asking to speak with a “Patient Advocate.” Id. 656:25. 53. The Patient Advocate Program is a system that VHA has in place to provide patients with an individual to help them with any issues or problems they might have with VHA. PIRT 638:16-19. 54. The Patient Advocate, after receiving a complaint from a veteran, is then supposed to log the veteran’s complaint into the Patient Advocate database. PIRT 657:6-10. If the complaint deals with a clinical decision about the need for treatment, it will be referred up to the chief of staff, who then has seven days to make a decision on how to handle the complaint. Id. 657:7-15. 55. If the veteran disagrees with the decision by the chief of staff, he or she can then appeal the decision to the VISN director at the network level, who would make the final decision. Id. 659:13-18. If the veteran disagrees with the VISN director’s decision, the veteran can ask the VISN director to request an external review. Id. 661:14-663:4. Only the VISN director can request external review, and the veteran, on his or her own, has no way of independently securing it. Id. If the VISN director does request an external review, the veteran does not have the right to know the results of this review. Id. 719:5-10. If the VISN director refuses to share the results of the external review with the veteran, the only manner in which the veteran might obtain the results would be through a Freedom of Information Act request. Id. 719:10-17. 8. PTSD and Suicide Screening 56. When veterans first enroll in the VHA after separating from the service, they are given a mental health screen at their initial primary care visit. PIRT 518:5-21. They are screened for PTSD, depression, traumatic brain injury, military sexual trauma, and problem drinking. Id. 57. In addition, all veterans who present for evaluation of primary mental health and/or addiction disorders are screened for suicide risk. Ex. 365. This screening consists of the following two questions: (1) “During the past two weeks, have you felt down, depressed, or hopeless?” and (2) “During the past two weeks, have you had any thoughts that life was not worth living or any thoughts of harming yourself in any way?” Id. If the patient answers “yes” to the first question but “no” to the second, no further suicide risk assessment is called for, unless the veteran is being admitted to an inpatient psychiatric unit. Id. Thus, unless the veteran admits to having suicidal thoughts within the last two weeks, no further suicide screening is performed, even if the veteran admits to having recently felt depressed or hopeless. Id. 58. Dr. Maris, Plaintiffs’ suicidology expert, was highly critical of this screening mechanism and made a strong argument that it fell below the acceptable standard of care. RT 288:5-8. Dr. Maris stated that a more comprehensive screening procedure, which would take only an additional 10 or 15 minutes, would be far more accurate in screening suicidal veterans. Id. 288:12-289:23. 59. Defendants’ suicide expert, Dr. Berman, testified that he “was singularly impressed” with what the VA is doing for screening and treating suicidal veterans. RT 1279:21-25. Dr. Berman testified that the two screening questions detailed above “are perfectly appropriate.” Id. 1292:2. He further testified that the level of screening embodied by these two questions “is the standard of care with regard to screening for suicide prevention — suicidal patients.” Id. 1292:10-11. B. Veterans Benefits Administration 60. The Veterans Benefits Administration (“VBA”) administers benefit programs for veterans, including service-connected death and disability compensation (“SCDDC”) benefits. RT 885:8-22. Under the Compensation and Pension Service, which includes nonservice-connected disabilities, approximately 3.4 million veterans receive benefits. Id. 887:12-14; 885:20-23. In fiscal year 2008, VBA will pay out approximately $38 billion in compensation and pension benefits. Id. 887:20. 61. Service connected injuries frequently interfere with the quality of life and/or preclude employment of a veteran upon return to civilian life, while deaths often deprive a veteran’s dependents of their principal or sole means of support. Compl. ¶ 93; Answer, ¶ 93. Many benefits recipients are totally or primarily dependent upon SCDDC for support. Id. 62. After deployment to Iraq, soldiers aged 18-24 comprised 50% of the Army and 80% of the Marines. RT 357:9-19. 82% of the Army personnel deployed have a high school diploma or less. Id. 358:3-7. 89% of the Marines deployed have a high school diploma or less. Id. These figures indicate that many of these soldiers, once they separate and become veterans, may have difficulty navigating complex benefit application procedures unless they are provided with substantial assistance. 1. Adjudication Process for SCDDC Claims 63. Veterans may file a claim for compensation and pension benefits at any of the 57 VA Regional Offices (“ROs”) throughout the country. RT 887:21-888:8. 64. A rating claim may seek compensation for more than one injury and each separate injury is considered an “issue” in the claim. RT 930:11-15. 65. In fiscal year 2007, the VBA received 838,141 ratings claims. Defs.’ Ex. 542; RT 972:16-22. Of these, 225,173 were “original” claims, that is, first time requests for benefits by veterans. Ex. 543. The remaining 612,968 claims were “reopened” claims — claims from veterans who had previously sought benefits from the VA. Exs. 542, 543. Of the original claims that year, 58,532 had 8 or more issues and 166,641 had 7 or fewer issues. Ex. 543. Since fiscal year 2005, the number of claims with 8 or more issues has increased by 34%, while the number of claims with 7 or fewer issues has remained mostly constant. Id.; RT 983:16-34-984:13. 66. Roughly 88% of veterans are granted SCDDC for at least one claimed disability. RT 1042:10-24. 67. Average Days to Complete (“ADC”) measures the time required to adjudicate all rating claims over a finite period. RT 900:12-902:8. ADC is computed by taking all rating claims adjudicated during a period, adding the number of days it took to complete each one, and dividing by the total number of claims that were adjudicated. Id. 900:12-18. As of trial, the ADC for fiscal year 2008 was approximately 183 days. Defs.’ Ex. 541; RT 936:11-12. Thus, on average, it takes the VBA 183 days to adjudicate a claim filed by a veteran. RT 936:11-15. 68. To 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 between the disability and the service. RT 887:8-11. 69. Veterans pursuing a SCDDC claim for PTSD have the additional burden of proving a “stressor” event during their service. RT 952:22-953:8. Evidence of a stressor is required by 38 C.F.R. § 3.304. A “stressor” is a specific event during the veteran’s service that led to the development of PTSD. RT 953:2-8. This additional requirement makes SCDDC claims for PTSD unique from all other types of claims. Id. 952:24-953:1. As Ronald Aument, the Deputy Under Secretary for Benefits until January 3, 2008, testified, PTSD claims, because of the substantial subjectivity involved in their evaluation, are among the most complex claims that the VA is asked to adjudicate. Ex. 1257 at 5. 70. Section 8.304 also provides that “if the evidence establishes that the veteran engaged in combat ... and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, ... the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.” 38 C.F.R. § 3.304(f)(1). 71. To file a SCDDC claim, a veteran must complete and submit a 23-page application on VA Form 21-526. RT 408:12-20; Ex. 1069. Veterans often make mistakes when completing this application and veterans suffering from PTSD have a particularly hard time with this. RT 39811-13. 72. Pursuant to the Veterans Claims Assistance Act (‘VCAA”), 38 U.S.C. § 5103, the VA owes veterans the duty to assist them develop all evidence supporting the issues in a claim. 73. Upon receipt of a benefits claim application, a VBA employee known as a Veterans Service Representative (“VSR”), is required under the VCAA to notify the veteran regarding any further evidence the VBA requires to adjudicate the claim. 38 U.S.C. § 5103; RT 940:12-17. This notice, also known as a “duty to notify letter,” must also indicate what information the veteran is expected to furnish and what evidence the VBA will seek on his behalf under the VCAA duty to assist. 38 U.S.C. § 5103; RT 940:12-17; 38 C.F.R. § 3.159(c). 74. Under the VCAA duty to assist, the VBA must seek all federal government records that may pertain to the claim. RT 940:23-941:4; 38 U.S.C. § 5103A. Typically, these will include service personnel and medical records, but may also include other records such as VA medical records or social security records. RT 942:6-944:8. The VA must continue to seek these records until the responsible agency attests that they are no longer available. Id. 940:23-941:4. 75. The duty to assist also requires the VBA to undertake reasonable efforts to acquire non-federal records, typically private medical records, identified by the veteran. RT 941:5-9; 944:9-945:2. The VBA cannot initiate the search for these records without a release executed by the veteran. Id. 76. The duty to notify letter provides veterans with a 60-day deadline to respond with any releases and with any evidence in the veteran’s possession. RT 941:19-24. Once the releases are received, the VBA is required to request the private records from their respective custodians. Id. 944:22-945:4. The request asks the custodian to provide the records within 60 days. Id. 945:3-13. If the records custodian fails to do so, the VBA sends out another request seeking a reply within 30 days. Id. 77. The duty to assist also includes the duty of “providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A. This medical examination is known as a Compensation and Pension Examination (“C & P Exam”). RT 946:22-947:6. The purpose of the C & P Exam is to confirm that a disability exists and to assess the medical implications of that disability in order to assist the claim adjudicator in determining the percentage the veteran will be considered disabled pursuant to the rating schedule. Id. 946:25-947:13. Thus, some veterans who have been treated for a disability at a VA medical facility may nonetheless be required to undergo a C & P exam. For example, a veteran may have actually been diagnosed with and treated for PTSD at a VA medical center, but because of some shortcoming in the medical records or evidence or because of some other deficiency, the veteran would still need to submit to a C & P exam if the VBA determines that one is necessary. Furthermore, a veteran may be diagnosed as not having, for example, PTSD, during a C & P Exam even after he or she was previously diagnosed as having PTSD by a treating physician at a VA medical center. 78. The VBA arranges and pays for a C & P exam. RT 951:18-952:20. The current wait time for a C & P exam is approximately 30-35 days. Id. 951:14-17. 79. Throughout the claims adjudication process, the evidentiary record remains open. RT 948:18-949:8. Thus, at any point, the veteran may supply new evidence. Id. The VACC duty to assist applies to this new evidence. Id. 945:3-13. In addition, the veteran may, at any time, introduce a new issue into the claim. Id. 949:9-950:1. For new issues, the claim development process is reinitiated so that the necessary evidence of this issue may be collected. Id. Between 10% and 20% of all claims have a new issue presented during the pendency of the claim. Id. 80. Once all the evidence has been gathered, a Rating Veterans Service Representative (“RVSR” or “rating specialist”) decides whether the disability is service connected and, if it is, assigns a rating to the claim. RT 895:16-896:5; 956:19-957:9. The rating assigned to a claim is based on a sliding scale of monthly compensation ranging from $115 per month for a 10% rating to $2471 per month for a 100% rating. 38 U.S.C. § 1114. Approximately 88% of all ratings claims are at least partially granted. RT 1042:15-24. 81. Although a veteran may be represented throughout the claim adjudication process at the RO, the veteran is statutorily prohibited from compensating a lawyer to represent him at the RO level. 38 U.S.C. § 5904. Thus, veterans may be represented by attorneys acting pro bono or, more commonly, by Veteran Service Organizations (“VSOs”). RT 932:20-934:21. VSOs are organizations that work on behalf of veterans. Id. The VA in some cases provides VSOs with office space in the ROs, computer systems and access to VA databases. Id. VA, however, does not provide training to VSOs regarding how to assist veterans. Id. 934:4-13. In addition, all of the VSOs combined cannot meet the needs of all the veterans seeking benefits. Id. 514:19-515:1. 82. Veterans may appeal a rating decision by the RO by filing a Notice of Disagreement (“NOD”). RT 1008:9-24. The NOD must be filed within one year of the RO’s decision. 38 U.S.C. § 7105(b)(1). The NOD is an informal paper stating that the veteran disagrees w