There has been much talk about what constitutes “due process” and a lot of it has been misleading. While perusing another Vet’s site, I noticed a long diatribe about what was reputed to not be due process and Cushman was cited. Let’s look at this.


Here are the particulars from the decison:

Philip Cushman served in a United States Marine Corps combat infantry battalion in Vietnam during the Vietnam War. While he was fortifying a bunker in Vietnam, a heavy sandbag fell on Mr. Cushman’s back and damaged his spine. He was honorably discharged in January of 1970. Mr. Cushman underwent four spinal surgeries to treat his injury and has received continuous pain medication.

In October of 1974, Mr. Cushman filed a disability claim with the Department of Veterans Affairs (“DVA”) at the Portland Regional Office. Following three years of interaction with medical examiners and Adjudication Officers at the Regional Office, the Board of Veterans’ Appeals (“Board”) found that Mr. Cushman’s injury was service connected, and classified his symptoms as “pronounced” (a grade above “severe”) with “persistent symptoms” and “little intermittent relief.” See 38 C.F.R. 4.71a (1982) (diagnostic code 5293). Mr. Cushman received a 60% disability rating, which is the maximum scheduled rating for a back injury.

Mr. Cushman secured a job as a manager at a flooring store. The job required some bending and lifting work, as well as supervision and paperwork. During his time on the job, Mr. Cushman’s back condition worsened. Mr. Cushman avoided sitting and standing at work whenever possible. During his last few months at work he would typically lie flat on his back behind the store counter to fill out paperwork and whenever it was not necessary to move around. In November of 1976, Mr. Cushman was asked to resign his position at the warehouse due to his inability to perform his job duties.

In October of 1976, Mr. Cushman went to the Portland DVA Outpatient Clinic to have his condition reassessed. Records from that visit diagnosed him as having a postoperative ruptured intervertebral disc, with radiculopathy and degenerative joint disease affecting his lumbar and lumbosacaral spine. In November of 1976, when Mr. Cushman resigned from his job, he returned to the DVA Outpatient Clinic for another assessment. This assessment, dated November 15, 1976, was the last entry in Mr. Cushman’s medical record {576 F.3d 1293} before his files were sent to the Portland Regional Office. The last comment in the record stated, “Is worse + must stop present type of work.”

Mr. Cushman filed a request with the DVA for a total disability based upon individual unemployability (“TDIU”) rating in May of 1977. With his request, Mr. Cushman included a letter from his former employer explaining that Mr. Cushman could not continue to work at the flooring store because he was always lying on his back to do paperwork. The following July, the Regional Office denied Mr. Cushman’s claim without obtaining his medical records. Mr. Cushman appealed to the Board. In February of 1978, the Board vacated the denial and remanded the case to the Regional Office with instructions to consider medical evidence in evaluating Mr. Cushman’s claims…..

Mr. Cushman requested reevaluation and a TDIU rating in 1994. He returned to the Outpatient Clinic for another assessment of his back condition. Based on the medical record of that visit, the DVA found him to be incapable of substantially gainful employment, and granted his TDIU rating. Mr. Cushman has received TDIU benefits since August of 1994.

In April of 1980, the Board affirmed the decision of the Regional Office. Although the Board did not cite any particular evidence on which it relied in making its decision, the Board concluded that “the evidence fails to show the presence of symptomology which would preclude sedentary employment.” The medical record before the Regional Office and Board, however, differed from the medical record on file at the DVA Outpatient Clinic. Namely, one of the doctor’s entries had been altered to change the language “Is worse + must stop present type of work” to instead read, “Is worse + must stop present type of work, or at least [] bend [] stoop lift.” (emphasis added, brackets indicate illegible or stray marks). The altered record also contained the additional entry, “says he is applying for reevaluation of back condition,” which does not appear in the official record on file with the Outpatient Clinic. The alterations appeared in the last, i.e., most recent, doctor’s notes documenting Mr. Cushman’s condition.


Mr. Cushman first discovered that there were two versions of his medical record in October of 1997. Mr. Cushman went to the DVA hospital to review his records in preparation for another hearing before the Board, this time seeking an earlier effective date for his TDIU rating. He also reviewed the record from his prior proceedings before the Regional Office and Board. He noticed that the medical record {576 F.3d 1294} attached to his claim adjudication did not match the medical record on file at the DVA hospital. The file at the DVA hospital contained only the original, unaltered document.

Mr. Cushman wrote to the DVA about the discrepancy between the two versions of his medical record. The DVA conducted an investigation that confirmed that Mr. Cushman’s medical record had been altered. In response to Mr. Cushman’s inquiry, the Chief Executive Officer of the Portland Regional Office sent Mr. Cushman a letter in which he acknowledged the discrepancy between the two medical records, and explained that the DVA was unable to locate the original (wet ink) record among its files. He also apologized that the DVA was unable to “arrive at a reasonable explanation” for the nonconforming records. He confirmed that the official record is the one without the additional entries. The DVA instructed the Portland Regional Office to destroy all copies of the altered document in Mr. Cushman’s file. The Office of Inspector General opened an investigation for fraud, but closed it three weeks later as unsubstantiated, two days after receiving the DVA’s response to the complaint.

Upon learning of the nonconforming records, Mr. Cushman challenged the Regional Office’s 1977 decision, and the Board’s 1980 and 1982 decisions as containing clear and unmistakable error (“CUE”). He argued that those decisions were based on medical records that were improperly altered to understate his disability. In February of 1999, the Board denied his claim on grounds that the 1977 decision was subsumed by the 1980 and 1982 decisions by the Board. The Board did not address Mr. Cushman’s argument that the 1980 and 1982 decisions imported the same CUE.

Mr. Cushman timely appealed to the Veterans Court. In November of 2001 the Veterans Court affirmed the Board with respect to the 1977 decision, and found that it did not have jurisdiction to review the 1980 and 1982 decisions because Mr. Cushman did not properly raise a CUE claim for those decisions.

Meanwhile, Mr. Cushman filed a civil action in the United States District Court for the District of Oregon regarding the denial of his social security disability claim. The district court remanded Mr. Cushman’s case for further evaluation by the Social Security Office. Mr. Cushman appealed to the United States Court of Appeals for the Ninth Circuit. In April of 2006, the Ninth Circuit reversed the district court and remanded his disability claim for immediate payment of benefits. The Ninth Circuit also found that Mr. Cushman’s medical record had been “fraudulently altered” and remanded the claim to determine whether he was entitled to retroactive disability benefits from an earlier date. Cushman v. Soc. Sec. Admin.,   175 Fed. Appx. 861, 862 (9th Cir. 2006). In August of 2007, the Social Security Administration Appeals Council (“Council”) reconsidered Mr. Cushman’s claim and found that he had been continuously disabled since February of 1976. The Council extended his benefits accordingly. Cushman v. Shinseki (2009)

Now we step up to the meat of the due process argument.

Mr. Cushman asserts that he was denied a full and fair hearing on the factual issues of his claim due to the presence of the altered medical record. Mr. Cushman therefore raises a genuine issue of procedural due process under the Fifth Amendment to the Constitution. Cf. Pierre v. West,  211 F.3d 1364, 1367 (Fed. Cir. 2000). We find that this court has jurisdiction to resolve the due process issue in deciding his claim.

In order to allege that the denial of his claim involved a violation of his due process rights, Mr. Cushman must first prove that as a veteran alleging a service-connected disability, he has a constitutional right to a fundamentally fair adjudication of his claim. The right to due process of applicants for veterans’ benefits is an issue of first impression for this court.

The Due Process Clause of the Fifth Amendment guarantees that an individual will not be deprived of life, liberty, or property without due process of law. U.S. Const. amend. V. Due process of law has been interpreted to include notice and a fair opportunity to be heard. See Mullane v. Cent. Hanover Tr. Co.,   339 U.S. 306, 313,   70 S. Ct. 652,   94 L. Ed. 865 (1950). To raise a due process question, the claimant must demonstrate a property interest entitled to such protections. Richard v. West,  161 F.3d 719, 723 (Fed. Cir. 1998).

It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker,   472 U.S. 115, 128,   105 S. Ct. 2520,   86 L. Ed. 2d 81 (1985); Mathews v. Eldridge,   424 U.S. 319, 332,   96 S. Ct. 893,   47 L. Ed. 2d 18 (1976). The Supreme Court has not, however, resolved the specific question of whether applicants for benefits, who have not yet been adjudicated as entitled to them, possess a property interest in those benefits. See Lyng v. Payne,   476 U.S. 926, 942,   106 S. Ct. 2333,   90 L. Ed. 2d 921 (1986); Walters v. Nat’l Ass’n of Radiation Survivors,   473 U.S. 305, 312, 320 n.8,   105 S. Ct. 3180,   87 L. Ed. 2d 220 (1985); Peer v. Griffeth,   445 U.S. 970, 100 S. Ct. {576 F.3d 1297} 1348,   64 L. Ed. 2d 247 (1980) (Rehnquist, J., dissenting).

The Supreme Court has, however, offered guidance relevant to our resolution of this question by explaining, “‘[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire’ and ‘more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.'” Town of Castle Rock, Colo. v. Gonzales,   545 U.S. 748, 756,   125 S. Ct. 2796,   162 L. Ed. 2d 658 (2005)

We now turn to the issue of whether Mr. Cushman acquired a due process right in his claim for benefits that was violated by the process he received from the Portland Regional Office, Board, and Veterans Court. 2

When Mr. Cushman was injured while serving in a United States combat infantry battalion in Vietnam, he acquired a legitimate claim of entitlement to veteran’s disability benefits under 38 U.S.C. § 1110 et seq. Applications for benefits cannot be denied unless the DVA factually determines that the applicant does not suffer {576 F.3d 1299} from a disability originating from service. Id.

The government asserts that even if due process attaches to veteran’s benefits, Mr. Cushman received adequate process, citing his multiple hearings before the Regional Office and appeals before the Board, Veterans Court, and this court. The sheer number of times that Mr. Cushman has appealed the denial of his claim, however, is not relevant to the question of whether he has ever received a fair hearing. The initial determination of Mr. Cushman’s TDIU claim was tainted by the presence of an improperly altered document. That initial determination has been subject to nothing but deferential review, on a record that still contained the altered document. The source of the fundamental unfairness that tainted the initial evaluation of Mr. Cushman’s claim was never removed from any prior proceedings. Therefore, none of the subsequent appeals and rehearings that Mr. Cushman received satisfied his due process right to a fair hearing on the merits of his disability claim.

We find, in this case, that the presentation of the altered medical document was indeed prejudicial. The Regional Office was instructed by the Board on remand to consider medical evidence in determining Mr. Cushman’s employability. The altered document was the only piece of medical evidence that addressed Mr. Cushman’s then current employability. The substance of the alterations spoke directly to the type of work that Mr. Cushman could perform in light of his progressing disability. Although, as the government argues, the Regional Office and Board did not discuss which evidence was determinative, any reasonable fact finder would have at least considered the altered medical record under these circumstances. The content of the altered document indicated that Mr. Cushman was more employable than did the content of the unaltered document. We find that there is a reasonable probability that the result of Mr. Cushman’s TDIU hearing would have been different in the presence of the unaltered document instead of the altered document.

Accordingly, consideration of the altered document instead of the unaltered document in adjudicating Mr. Cushman’s claim was a violation of his constitutional right to a fair hearing. Mr. Cushman is entitled to a new hearing without the presence of the altered document. We therefore vacate the decision of the Veterans Court and remand the case with instructions to further remand to the Board for a de novo determination of Mr. Cushman’s 1977 TDIU request.

Mr. Cushman went on to assert CUE but that wasn’t necessary. Once the Court has found fault with the decision in any regard, secondary accusations of impropriety are superfluous. In fact, by not addressing the relative merits of CUE in great detail, it will preserve his right to argue those on another appeal.

So, what have we learned from this vis a vis due process. It is a right accorded us under the Fifth Amendment. We are entitled to present our case based on the true state of the evidence. Falsifying or in any way obfuscating it provokes a tainted decision. Regardless of whether Mr. Cushman’s argument had judicial merit or held water, by including evidence that simply wasn’t true and refusing to remove it, the RO, the BVA and the CAVC all continued to step on their neckties by ignoring due process.

Since this is such a new venue to argue in Veterans law, it causes confusion as to whether it can even enter into the discussion. Where, as here, it has such tremendous import to a fair adjudication, the old “Well, gee. Cushman wasn’t disenfranchised. He got to have it looked at three times” doesn’t cut it. That is what the boys up at the Fed. Circuit enunciated. Any set of circumstances in law, even VA law, that creates an unlevel playing field for the Vet, is of concern. Under the best of circumstances we often do not prevail because the evidence has been lost, misplaced or, God forbid, destroyed or altered by those entrusted with it. For the VA to profit from this or assert that it would not manifestly have changed the outcome ignores the concept of a veteran friendly environment where every consideration is accorded the Vet.

Mr. Cushman was disenfranchised in 1977 and did not discover the malfeasance until 1997. VA somehow feels that this means finality has attached. I can commiserate with him. I went to a BVA decision in 1992 assuming they would remand for my missing service  medical records. I lost and did not discover they hadn’t until I got my C-file in 2009. Retrieving service medical records is not optional. If, for whatever reason, they fail  to do so, the VA is required to come to you, hat in hand, and ask how you wish to proceed. Failure to cure this deficiency is also a due process violation because the absence of records is just as insurmountable as altering them.

Veterans benefited from this decision immensely and will start to make inroads into VA law as this tenet gains purchase. My hope is that the higher courts will eventually overthrow Caffrey as being apposite to due process. An incorrect record, due to VA intransigence or indifference, cannot be classified as an incomplete record without the codicil attaching as to why it’s incomplete. The precedent cannot be immutable. There will always be a “Yeah, but…” moment where failure to obtain these probative documents is the seminal cause for the error. Always remember that catchy phrase “Veteran friendly” and don’t lose sight of it.

Like the venerable American Express card, we  never took off without one of these on board. They kick like a .338 Win mag. The strap makes a very good impromptu tourniquet as well.

About asknod

VA claims blogger
This entry was posted in CUE, Fed. Cir. & Supreme Ct., From the footlocker, Important CAVC/COVA Ruling, Tips and Tricks, Veterans Law and tagged , , , , , . Bookmark the permalink.

2 Responses to Fed. Cir.–CUSHMAN v. SHINSEKI–DUE PROCESS

  1. Robert G says:

    I remember when this decision was handed down. I then called my wonderful lawyer and asked him if this decision would affect my CUE and due process rights. Considering the “altered records” in my nexus I opined would it matter? Damn lawyer went ballistic and ordered me to not read anything that pretained to my CUE. Rather than whine here I never got an answer to this question. You have seen my nexus. I pointed out the crossed out sentences and words regarding “likely as” which isn’t VA approved garble. Any thoughts?

    • asknod says:

      My thought are to go to the VAMC nearest you to Release Of Information (ROI). Ask for the files during that time span or any and all they have in their computer. I have my own medical records library. Look to see if it is on the Hospital’s copy. If it isn’t, then you are looking at altered records and have CUE.

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