Cushman v. Shinseki
2009 WL 2448505, 2009 U.S. App. LEXIS 17848, 576 F.3d 1290 (2009)
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Rule of Law:
An applicant for non-discretionary, statutorily mandated veteran's disability benefits has a protected property interest under the Fifth Amendment's Due Process Clause, which is violated when an adjudicatory body considers improperly altered, material evidence in deciding the claim.
Facts:
- Philip Cushman, a U.S. Marine Corps veteran, sustained a severe spinal injury in Vietnam when a sandbag fell on his back.
- After his honorable discharge in 1970, he underwent four spinal surgeries and received continuous pain medication.
- Cushman worked as a manager at a flooring store, but his condition worsened to the point where he had to lie on his back to complete paperwork.
- In November 1976, Cushman's employer asked him to resign due to his inability to perform his job duties.
- A Department of Veterans Affairs (DVA) medical record entry from November 15, 1976, originally stated his condition "Is worse + must stop present type of work."
- In May 1977, Cushman filed a claim for a total disability rating based on individual unemployability (TDIU).
- In 1997, Cushman discovered that the version of his medical record used in his earlier DVA hearings had been altered. The key entry was changed to read, "Is worse + must stop present type of work, or at least [] bend [] stoop lift."
Procedural Posture:
- In 1977, Philip Cushman's claim for a TDIU rating was denied by the DVA Regional Office.
- Cushman appealed to the Board of Veterans’ Appeals ('Board'), which vacated the denial and remanded in 1978.
- The Regional Office again denied the claim, and Cushman appealed to the Board, which affirmed the denial in 1980 and on reconsideration in 1982.
- After discovering the altered record, Cushman filed a challenge based on Clear and Unmistakable Error (CUE), which the Board denied in 1999.
- Cushman, as appellant, appealed to the Court of Appeals for Veterans Claims ('Veterans Court'), which affirmed the Board in 2001.
- Cushman's subsequent appeal to the Federal Circuit resulted in a summary affirmance in 2002.
- In 2003, Cushman again moved the Board to reverse its 1980 and 1982 decisions; the Board denied the motion in 2005.
- Cushman, as appellant, appealed the Board's 2005 decision to the Veterans Court, which affirmed the Board's decision in 2008.
- Cushman, as appellant, then appealed the Veterans Court's 2008 decision to the U.S. Court of Appeals for the Federal Circuit.
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Issue:
Does the consideration of an improperly altered medical record in a veteran's disability benefits adjudication violate the applicant's Fifth Amendment due process right to a fair hearing?
Opinions:
Majority - Prost, Circuit Judge.
Yes. The consideration of an improperly altered medical record violates an applicant's due process rights. Applicants for non-discretionary, statutorily mandated benefits, such as veteran's disability payments, have a legitimate claim of entitlement that constitutes a protected property interest under the Fifth Amendment. This right entitles them to a fundamentally fair adjudication. The introduction of an improperly altered medical record taints the proceedings with fundamental unfairness, especially when the alteration is material. Evidence is material if there is a reasonable probability that the outcome would have been different without it. Here, the alteration directly addressed Cushman's ability to work and was the most recent medical evidence, making it highly material and prejudicial, thus violating his right to due process.
Analysis:
This case establishes for the first time in the Federal Circuit that applicants for veterans' benefits, not just existing recipients, possess a protected property interest under the Due Process Clause. This holding creates a constitutional floor for procedural fairness in DVA adjudications, independent of the statutory 'Clear and Unmistakable Error' (CUE) framework. It confirms that individual claims must be fundamentally fair, and the use of tainted evidence can constitute a constitutional violation requiring a new hearing. This precedent strengthens protections for veterans by ensuring their claims are evaluated based on authentic and unaltered evidence from the outset.
