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THE NATIONAL
LAW JOURNAL
Determined Cushman
scores veterans benefits victory
Marcia Coyle
September 1, 2009
Veterans, who often encounter lengthy
delays and other obstacles in their
pursuit of service-connected benefits,
have a new constitutional right that may
help them cut through
some of the notorious, bureaucratic red
tape inherent in the Department of
Veterans Affairs' claims process.
The U.S. Court of Appeals for the
Federal Circuit, in a little-noticed
case of first impression, recently ruled
that veterans who apply for benefits,
not just those who already
receive them, have a right of due
process under the Fifth Amendment.
"I think the constitutional issue is
really, really important," said Gordon
Erspamer, partner in Morrison & Foerster,
who, with associate Kevin Calia,
represented Vietnam
veteran Philip Cushman in the case. "In
almost every veteran's case you bring,
the government argues that veterans
don't have a due process, property
interest in receiving
benefits and they try to distinguish
between applicants and recipients. The
court swept that aside."
Cushman, who sought disability benefits
for a war-related back injury, spent
more than a decade unsuccessfully trying
to convince a regional office of the
Department of Veterans
Affairs, the department's Board of
Veterans' Appeals and the U.S. Court of
Appeals for Veterans Claims that his
medical record had been fraudulently
altered.
In Cushman v. Shinseki, the Federal
Circuit on Aug. 12, led by Judge Sharon
Prost, said it is well established that
disability benefits are a protected
property interest and may
not be discontinued without due process
of law. But, added the court, the
Supreme Court has not resolved whether
applicants for benefits also possess a
property interest in
them.
After finding "guidance" in related
decisions by the Supreme Court and other
circuits, the Federal Circuit concluded
"a veteran alleging a service-connected
disability has a due
process right to fair adjudication of
his claim for benefits." By using the
tainted medical record, the court said,
the appeals board violated Cushman's due
process right. The
court ordered a new hearing — without
the altered medical record — on his
request for a total disability rating.
The court rejected the government's two
main arguments: that even if due process
attaches to veterans' benefits, Cushman
received adequate process because of his
multiple
hearings before the regional office, the
appeals board, the Veterans Court and
the Federal Circuit, and that because
the veteran's claims procedures provide
due process
"generally," there is no violation when
due process is denied on the basis of an
error in an individual case.
"Hopefully this constitutional claim
will help others to overcome some of the
bureaucratic obstacles that caused a lot
of the delays in our case," said Calia.
"We know that Phil
is not alone in this type of problem."
Cushman, a former Marine, actually began
his odyssey in the benefits system in
1976 when a VA clinic reevaluated his
back condition. On the basis of that
evaluation, he applied
in 1977 for total disability based on
individual unemployability. The regional
office rejected his claim and he then
began a series of appeals which resulted
in more denials
based on the altered medical record.
It wasn't until 1997 that Cushman
himself discovered the original 1976
clinic record which, in comparison with
the medical record used by those denying
his claim, revealed the
alteration.
"The government has control over these
records in a way that is unique and it
takes a lot of tenacity to find an
alteration," said Calia who made the
Federal Circuit argument.
Erspamer agreed, adding, "There are very
few vets who are as determined, and
almost crazily so, as Phil, to follow
through and not be discouraged by losing
so many times."
The department's Portland Regional
Office confirmed Cushman's finding and,
the court noted, apologized that the
department was unable to "arrive at a
reasonable explanation" for
the nonconforming records. Prost also
noted that the department's Office of
Inspector General opened an
investigation for fraud, but closed it
three weeks later as
unsubstantiated, two days after
receiving the department's response to
the fraud complaint.
In an effort parallel to his veteran
benefits claim, Cushman pursued a civil
action pro se in federal district court
challenging the denial of his social
security disability
claim based on the medical record
produced by the VA. The 9th Circuit
subsequently ruled in 2006 that his
medical record had been "fraudulently
altered." In August 2007, the
Social Security Administration Appeals
Council found that he had been
continuously disabled since February
1976 and extended his benefits from that
date.
Marcia Coyle
Chief Washington Correspondent
The National Law Journal
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