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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


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