Believe it or not, until a few months ago not a single court had ever held that a veteran “has a constitutional right to have his claim for veteran’s disability benefits decided according to fundamentally fair procedures.” This patently obvious right was finally recognized by the United States Court of Appeals for the Federal Circuit in Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009), the first court to hold that persons who are claimants for government benefits are entitled to constitutional due process protections.

The plaintiff, Philip Cushman, served in a United States Marine Corps combat infantry battalion in the Vietnam War. He suffered a spine injury when a sandbag fell on him and he was honorably discharged in 1970. He initially applied for service-connected compensation benefits from the Department of Veterans Affairs (VA) in 1974 and was given a 60% disability rating for his back. He found work for a time with a flooring store, but his back made it difficult to work and he was asked to resign in 1976. He underwent an examination at the Portland VA clinic where the doctor recorded the following: “Is worse + must stop present type of work.”

In 1977, Mr. Cushman applied for total disability based upon individual unemployability (“TDIU”). He also applied for disability benefits from the Social Security Administration (SSA). Unknown to him at that time, someone altered this medical records to read: “Is worse + must stop present type of work,…or at least…bend…stoop lift.” and “says he is applying for reevaluation of back condition.” His application for TDIU was denied. His claim for SSA disability benefits was also denied after the VA sent the same forged records to the SSA. In 1994, Mr. Cushman sought another assessment of his back condition and was awarded TDIU.

Several years later in 1997, Mr. Cushman finally discovered the fabricated medical record which may have cost him twenty years worth of benefits. Upon learning that the prior VA decisions denying benefits were based upon forged records, Mr. Cushman challenged the prior decisions as containing clear and unmistakable error. He also claimed that the process used to adjudicate his claims violated his due process rights. In response, the VA decided that Mr. Cushman was not entitled to retroactive VA benefits. In the meantime, the SSA had award Mr. Cushman benefits going back to 1974 after a separate lengthy court battle.

Mr. Cushman filed an appeal of the denial of retroactive VA benefits. On August 12, 2009, the United States Court of Appeals for the Federal Circuit ruled, for the first time, that a veteran “has a constitutional right to have his claim for veteran’s disability benefits decided according to fundamentally fair procedures.” Further, the Court ruled that a veteran has a constitutionally-protected property right in an  application for benefits, and that this right cannot be denied without proper notice and a fair opportunity to be heard. To support its decision, the Court cited the Fifth Amendment to the United States Constitution States stating that an individual will not be deprived of life, liberty, or property without due process of law.

As a result, the Court concluded that Mr. Cushman’s constitutional right to have his claim for VA disability benefits decided according to fundamentally fair procedures was violated due to the presence of the fabricated medical records in his VA claims file.

The case is annexed here – Cushman v. Shinseki