Due Process for Veterans. Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009) A. Advocates and veterans know that obtaining benefits from the VA can

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1 Due Process for Veterans Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009) I. Introduction A. Advocates and veterans know that obtaining benefits from the VA can be frustrating. All veterans have to put up with a certain amount of red tape and delay. But some veterans have to deal with more serious problems their to assure adequate accuracy of the information and procedures affecting the result. What made things worse was the lack of recourse to address these problems because veterans had no protectable constitutional rights regarding their claims prior to an eligibility determination. B. In Cushman, the question the arose was whether veterans who have been unfairly treated have the option of claiming a violation of the constitutional right to Due Process under the Fifth Amendment. C What is due process? At the most basic level it is the right to fairness when it comes to adjudicating a claim before the deprivation of life, liberty, or property. Examples of what previously has been required in differing contexts to satisfy procedural due process before ending or reducing such benefits include: 1 of 19

2 adequate notice of a hearing regarding the discontinuation of a recognized property interest; a hearing prior to the discontinuation of a recognized property interest; a hearing shortly after the discontinuation of a recognized property interest; the right to examine adverse witnesses; the right to present evidence in one s own favor; and a statement of the reasons for termination. D. Examples of property that have been deemed protected by constitutional provisions include: Disability benefits; Public welfare benefits; Retirement benefits; and Medicaid. E. Due process for veterans might mean that they could not face an arbitrary reduction or discontinuation of their disability benefits without some level of procedural safeguards to ensure that any change in financial compensation was fair a safety valve of sorts. 2 of 19

3 II. History Behind Cushman: Walters v. National Ass n of Radiation Survivors A. Walters v. Natl. Assoc. of Radiation Survivors proved one of the most important procedural due process cases to come before the Supreme Court. In that case veterans organizations, veterans, and a veteran s survivor made a constitutional challenge to 38 USC 3404(c), which limited to ten dollars the fee an attorney could charge a veteran seeking service-connected death or disability benefits. B. In Walters, the Supreme Court reversed the United States District Court for the Northern District of California, which had held that the ten dollar limit violates the Due Process Clause of the Fifth Amendment because it denies veterans or their survivors the opportunity to retain counsel of their choice in pursuing their claims. Walters v. Nat l Assoc. of Radiation Survivors, 473 U.S. 305, 307 (1985). The Justices based this decision, in part, on the belief that the evidence before the lower court failed to establish a great disparity between claims handled with or without lawyers as to warrant the inference that the congressional fee limitation violates the Due Process Clause of the Fifth Amendment. Furthermore, the Court felt that lifting the $10 fee would do more harm than good to the efficiency of the process by making in much more adversarial in contrast to paternal Congressional intent. 3 of 19

4 C. While the Justices found no procedural due process violation in Walters, the Supreme Court failed to explain whether due process applies to VA rulings concerning applicants and their disability benefits eligibility. III. Cushman Facts A. The veteran, Philip E. Cushman, was injured while fortifying a bunker in Vietnam when a sandbag fell on his back. In October 1974, he filed for service connection for a back condition. He was granted service connection for his back, and awarded a 60% disability evaluation. B. The veteran worked as a manager at a flooring store, which required him to bend and lift. His disability became so severe that during his last months at work he would lie flat on his back behind the counter, completing paperwork because that was the only position in which his back did not bother him. C. In October 1976, VA OPT clinic records showed a diagnosis of postoperative ruptured intervertebral disc w/ radiculopathy & DJD. A November 15, 1976 VA OPT assessment was is worse + must stop present type of work. D. In November 1976 the veteran was asked to resign because he could not perform job duties. In May 1977, he filed for total disability 4 of 19

5 based on individual unemployability (TDIU). He included a letter from his former employer that said that the veteran could not continue work because he always had to lie on his back to do paperwork. In July 1977, the VA denied TDIU benefits. E. In February 1978, the BVA remanded the veteran s TDIU claim for the RO to consider the medical evidence. In November 1978, the VARO again denied TDIU. In April 1980, the BVA denied TDIU, determining that the evidence failed to show symptoms that would preclude sedentary employment. In 1982, the Board denied the veteran s motion for reconsideration of the 1980 decision. F. In 1994 the veteran applied for and was granted TDIU, effective August In October 1997, preparing for a hearing challenging his effective date of TDIU benefits, the veteran discovers that 2 versions of his 11/15/76 medical record exist. VA and OIG investigate, but the veteran receives no relief and the investigations are closed. G. The veteran challenged the RO s 1977 and the Board s 1980 and 1982 decisions as CUE. The veteran argued that the Regional Office s 1977 and the Board s 1980 and 1982 decisions were based on improperly altered medical documents which effectively 5 of 19

6 underestimating his disability which equated to clear and unmistakable error ( CUE ). In February 1999, the Board found that the 1977 RO decision was subsumed by later BVA decisions, and it ignored the CUE claim against the 1980 and 1982 BVA decisions. H. In November 2001 the Veterans Court affirmed the Board s findings concerning the 1977 decision and stated it had no jurisdiction over either the 1980 or 1982 decisions because the veteran had failed to properly raise a CUE claim. Thereafter, the veteran appealed, taking his case to the Federal Circuit. At the Federal Circuit, the veteran first argued that the process used to adjudicate his claims violated his due process rights yet the Federal Circuit affirmed after the Government argued that Cushman was free to raise his concerns about the doctored medical record. I. In October 2003, the veteran claimed CUE in the 1980 and 1982 decisions, arguing that the consideration of the improperly altered medical record constituted CUE. The Board rejected this argument because it felt there was no evidence that the previous decisions were based on the altered documents. J. Around the same time he was seeking relief from the Board, the veteran filed a civil suit in U.S. District Court after the denial of his 6 of 19

7 social security disability benefits claim, the record of which included the medical records sent over from the VA. In April 2006, the 9 th Circuit (1) reversed the district court and remanded his claim for the immediate payment of SSA benefits and (2) found that his medical records had been fraudulently altered and hence also remanded that claim to determine whether he should receive retroactive disability benefits from an earlier date. The SSA ultimately ruled that the veteran had been continuously disabled from his back since early 1976, and his SSA benefits were effective back to that date. K. While the SSA held in favor of the veteran, the VA continued to deny TDIU. In February 2008, a single judge panel of the Veterans Court again affirmed the Board s denial and the veteran appealed for a second time to the Federal Circuit. IV. The Federal Circuit s Decision in Cushman A. The Federal Circuit [found] that a veteran alleging a serviceconnected disability has a due process right to fair adjudication of his claim for benefits. See Cushman, 2009 U.S. App. LEXIS 17848, at *2. Furthermore, that in the veteran s case, his due process rights were violated by the consideration of tainted medical evidence. 7 of 19

8 B. In Town of Castle Rock v. Gonzales, the Supreme Court stated that [t]o have a property interest in a benefit, a person must have... a legitimate claim of entitlement to it. Citing Kentucky Department of Corrections v. Thompson, the Court further stated that a benefit is not a protected entitlement if government officials may grant or deny it in their discretion. Id. at 756. With these principles in mind, the Court analogized a veteran s claim to a social security disability claim. Like a veteran s disability benefits claim, SSA benefits are not granted on the basis of need, but rather are a non-discretionary property interest for qualifying individuals. Both benefits, social security and veteran s service-connected disability, are statutorily mandated for qualified individuals. C. The Federal Circuit also found widespread support amongst sister Circuit Courts for holding that mandated benefits equate to a property interest, protected under the Fifth Amendment s Due Process clause. In the Cushman case, the Court held that the veteran acquired a due process right regarding his claim for service-connected disability benefits. As an infantryman injured in Vietnam, he qualified for service-connected disability benefits under 38 U.S.C of 19

9 D. The Court considered whether the procedures as applied to the veteran passed constitutional muster. Mr. Cushman has a constitutional right to have his claim for veteran s disability decided according to fundamentally fair procedures. We find that this right was violated due to the presence of an improperly altered medical record in Mr. Cushman s file. E. As to the remedy in the Cushman case, the Court vacated the June 2008 decision of the Veterans Court and remanded the claim back to the Board. The Board was instructed to determine in a de novo hearing whether without the presence of the alterations in his medical record... the veteran [could have secured] substantially gainful occupation between May 3, 1977 and August 31, 1994, because of his service-connected disability. V. What does Cushman Mean for Veterans & Advocates? A. Under Cushman, veterans have an additional ground to challenge unfavorable and final VA decisions. Prior to Cushman, once a decision was final, a veteran seeking to reverse or amend a denial had to demonstrate CUE. CUE requires the following: Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied of 19

10 [CUE is] the sort of error which had it not been made, would have manifestly changed the outcome.... [, an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell v. Principi, 3 Vet. App. 310, (1992) (en banc). Under 38 C.F.R (a), if CUE is established then the previous decision is reversed or amended and any rating which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R (a). In order to succeed on a claim based on CUE, the veteran would have had to show undebatably that the Board relied on the altered document and that had they not done so he would have been granted TDIU benefits. B. The government has not sought certiorari to the United States Supreme Court. Therefore, Cushman remains precedent in the Federal Circuit and appropriate lower courts and administrative bodies. With this in mind, we now survey possible procedural due process violations or contexts in which Cushman could be used by advocates. A. Altered Medical Records 10 of 19

11 1. Advocates who come upon what appears to be a false or fraudulent document in the claims file should be prepared to make a due process violation argument. This begs the question what does procedural due process, i.e. fairness, require in such a case? 2. In order to get a remand based on procedural due process, an advocate should be prepared to counter and advance multiple arguments. First, the sheer number of times... [an appellant] has appealed the denial of his claim... is not relevant to the question of whether or [he or she] has received a fair hearing if the record contained what the Federal Circuit referred to as an improperly altered document. Cushman, 2009 U.S. App. LEXIS 17848, at *22. This statement by the Court is a crucial weapon considering the highly deferential CUE standard of review. Id. 3. Second, the advocate should argue that the documents, per Cushman, should be removed from the record upon discovery, prior to any further proceedings. Once discovered, any future hearing that included the tainted record failed to meet constitutional muster for a fair hearing. This is not a 11 of 19

12 challenge to the hearing procedures in its entirety. Instead, the advocate must argue that by not removing the altered documents the existing procedures were unfairly applied to the veteran by the government. 4. Third, the intent of the person altering the documents does not have any effect on whether a due process violation has taken place. See Brady v. Maryland, 373 U.S. 83, 87. (1963). What matters is that there was a reasonable possibility that the outcome would not have been the same in the absence of the document. 5. After establishing a case that a Fifth Amendment violation has taken place, an advocate should argue that the proper remedy concerning the veteran s claim is to start all over from the beginning at the appropriate Regional Office. No matter what level within the VA appeals process (Board of Veterans Appeals, Court of Appeals for Veterans Claims) this would be appropriate because the entire process would have been tainted by the altered document thus necessitating starting the process again with a clean slate. At a minimum, this would give the 12 of 19

13 veteran the benefit of the full appeals process within the VA and the best chance of obtaining the desired result. B. Another Veteran s Records in A Claims File 1. Another possible procedural due process scenario encountered by advocates is when records from one veteran are in the file of another veteran, and that led to an unfavorable ruling on a claim. 2. In a non precedent case considered by the CAVC, the veteran filed a claim with the VA seeking service-connection for injuries sustained in a truck accident and while working as a medic in the early 1960 s. When the case was at the Court, it was discovered that the veteran s file contained another veteran s record. The veteran contended that the document contained statements negatively reflecting on one of his claims by erroneously stating he suffered from diabetes which ultimately led to an inaccurate medical opinion. 3. In a case where the misplaced document arguably caused benefits to be denied, the advocate should point out that his or her client was denied a fair hearing by the agency. This would be based on the dispositive nature of the misidentified 13 of 19

14 document, because inaccurate records cannot form a plausible basis for denying a claim. If the case is at the RO or Board, the advocate should call the problem to the attention of the VA, so that the records can be removed and a new decision made. If the case is at the Court, a motion to remand so that the RO can review the claim without the misfiled documents. 4. If there is a prior final decision that appears to have been denied because of the content of the misfiled document, the advocate could file a CUE motion and in addition make a due process argument. C. Opportunity to Confront Doctors 1. In Gambill v. Shinseki, an army veteran suffering from cataracts sought service connection as a result of a trash barrel which fell on his head while he was on active duty. The claim was denied in part on the basis of a VA ophthalmologist who provided a negative report without an actual examination of Mr. Gambill. Upon appeal to the CAVC, he claimed that the DVA had violated his rights under the Due Process Clause of the Fifth Amendment to the Constitution by not allowing him to submit written interrogatories 14 of 19

15 to the... ophthalmologist and by failing to advise him that he had the right to do so. 2. The Federal Circuit said that the veteran s inability to confront the ophthalmologist was harmless error in this case because even without the negative medical opinion from the ophthalmologist, the veteran would not have won because there was no evidence in the record that the service injury caused the veteran s cataracts. The Federal Circuit did not decide the question whether due process required that he be allowed to confront the ophthalmologist using interrogatories. 3. In a case where there is a better record, an advocate might succeed on a due process claim. As a remedy, advocates should argue that a remand to the RO is warranted because the appellant s lack of confrontation of the adverse medical witnesses constitutes a prejudicial error. D. Bias Against Veteran 1. When the claim file contains evidence of bias against the a veteran that influenced the decision-making process, there may be a due process argument. For example, in a recent BVA decision, a veteran who was accused of rape during service tried to obtain 15 of 19

16 service connection for depression. He argued that the depression was incurred in service due to the accusation of rape. The claims file contained a handwritten note: Not for CURR team. Not combat related. He was not a victim of [military sexual trauma,] he was an accused, and the reported charges were dropped. I don t see any reason as to why he gets depressed or gets PTSD for a free ride. The case is [ready to rate] when the VCAA is up. Many claims files contain such biased statements from decisionmakers. It is clear that such comments are clearly inappropriate and evidence bias in what is supposed to be a non-adversarial process. Further, such statements may constitute a due process violation if the case contained adequate evidence to support service connection and there is a reasonable probability that the veteran would have been granted benefits had there not been bias against the veteran. 2. Similarly, in the case Calayong v. West, the RO asked for an expert medical opinion. In its engagement letter, the VA told the expert that he should feel free to refute the private physician s report as fully as possible for a better argument. Colayong v. West, 12 Vet. App. 524, (1999). While the VA has the authority to seek 16 of 19

17 expert opinions in evaluating a veteran s claims, see 38 C.F.R , they do not have the right to suggest an answer or limit the scope of the inquiry for an expert. 3. An advocate who comes across such statements such as these should argue that his or her client has been deprived of a fair hearing and constitutional rights. The suggested remedy would be to have the biased evidence removed from the file and the veteran provided a new expert medical opinion. D. Language Barrier Cases 1. A possible procedural due process violation may be encountered when evaluating the records of veterans whose primary language is not English. One of the first arguments that an advocate might be advised to make would be in consideration of the notice given to the veteran. Procedural due process has been held to require adequate notice be given prior to the deprivation of a property right. In light of Cushman, it would be reasonable to extend this to notice of what might be required to substantiate a claim for service-connected benefits before the VA. In such a case, it would be beneficial to show the extent of the veteran s inability to speak, read, and 17 of 19

18 understand the English language. See Nieves-Ramos v. Peake, 2008 U.S. App. Vet. Claims LEXIS 332, at *6-8. ( [t]he full extent of the veteran s possible disability in reading an understanding English-particularly the ability to understand the notice letter- should be addressed.... ) 2. Furthermore, a veteran whose records were not transmitted to the VA courts with a proper certified translation may have a due process argument. See Igartua v. Peake, 2008 U.S. App. Vet. Claims LEXIS 1624, at *2. An advocate should explain that the adequate remedy for failure to provide properly translated documents is to vacate any adverse decision because further judicial review would be adequate without accompanying English versions of the aforementioned documents. See id. at *2-3. This will give the veteran the most extensive means by which to pursue and if necessary, appeal an improper resolution to his claim. 3. To complete the claim, a veteran alleging constitutional errors in procedure should make the argument in a concrete rather than abstract form, with specific instances of how the language barrier or lack of translation affected his or her claim, see Nieves-Ramos. 18 of 19

19 at *12, and hence clear and unmistakable error was committed, see Igartua, at *2. 19 of 19