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VETS WIN LANDMARK DECISION: Due Process Guaranteed for First Time
VA ALTERS MEDICAL RECORDS
IGNORES EVIDENCE/SMACKED DOWN BY FEDERAL COURT
Editors Note: Must Read!
As the U.S. Dept of Veterans Affairs (DVA) has become infamous for its culture of denial of veterans’ claims, a potentially landmark decision may signal an end to this bureaucratic phenomenon that has caused veterans’ advocates to shake their heads in disbelief for decades.
Signaling a judicial mandate that U.S. governmental agencies follow the law, a top federal appellate court has ruled the Court of Appeals for Veterans Claims (CAVC) and the Dept of Veterans Affairs (DVA) violated the due process rights of a Vietnam War Marine veteran in wrongfully deciding his disability case.
The case, Cushman v. Shinseki (No. 08-7129), rules that this Marine veteran like other Americans is entitled to a fair hearing in administrative law courts such as the Court of Appeals for Veterans Claims (CAVC).
“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,” ruled the Court.
The United States Court of Appeals for the Federal Circuit was created in 1982 and hears appeals from all over the U.S. including from numerous federal administrative courts such as the U.S. Court of Federal Claims and the U.S. Court of Appeals for Veterans Claims (CAVC).
The case is described by Larry Scott of VA WatchDog as a “landmark decision … which could impact hundreds of thousands of veterans.”
The ruling is hailed by Philip Cushman, the Marine veteran who filed the complaint, in an e-mail to Larry Scott: U.S. Court of Appeals for the Federal Circuit, [has] recognized a PROPERTY RIGHT INTEREST in a VA claim, thus triggering the legal protections of DUE PROCESS OF LAW which mandates a FAIR and IMPARTIAL VA adjudication process. This [is] a HUGE victory for the [nearly] MILLION veterans now caught up in VA backlogged claims denial mill.
The Court decision concludes Mr. Cushman demonstrated that his injury meets the service connection requirement of [United States Code]. Mr. Cushman has a constitutional right to have his claim for veteran’s disability benefits 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.
We vacate the June 6, 2008 decision of the Veterans Court and remand the case with instructions to grant Mr. Cushman a new hearing before the Board to determine de novo and without the presence of the alterations in his medical record whether Mr. Cushman was unable to secure a substantially gainful occupation between May 3, 1977 and August 31, 1994, because of his service-connected disability.
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Short URL: http://www.veteranstoday.com/?p=8308
Posted by Yanira Farray on Aug 18 2009, With 0 Reads, Filed under Vet News. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.
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UMMMMMMMMM!!!!!!!!!!!!!!!!!!
I wonder what the Department of Veteran Affairs Office of Inspector Genderal will do now!!!
The VAOIG will do what it always does lie and cover-up for VA regional office or blame other government agencies for their mistakes, meanwhile we die off waiting for change.
This decision is a strong move towards eliminating the unconstitutional “Feres Doctrine”. This also puts the VA on the defensive, from a legal perspective, instead of being a rogue agency. The VA better clean up its act with a quickness, too. There are hundreds of thousands of snarling veterans waiting to pounce on the VA and give them some much needed payback. Myself included in that number. This ruling also hints at individual VA employees eventually being culpable for their actions. I personally plan on spending MUCH time at my local VARO. Any VA drone that steps out of line is going to be staring at the business end of my balls in federal court. Bring it on!
About damn time!
It probably won’t change anything. I can’t help the pessimism after years of fighting with the VA.
Atleast he got his c-file. I am sending 1 request in everyday
nothing will ever change until the adjudicator’s, and administrative law judges are held accountable for the rating they do. the government shoyuld have to pay this mans lawyer fees, if he wins his claim with an earlier effective date. if he has a lawyer, he will probably get 20% of his back pay. i won my claim last year after 28+ years. my lawyer was paid over $50,000, and deserved every bit of it, because without her i would not have ever won. the battle is only beginning. sc exempts total disabled veterans from paying vehicle property tax. i think i should get a refund for those 28+ years i paid the tax. the law says i must have filed for the exemption. i was not eligible to file for the exemption until last year, when i received the effective date of the award as 1980. so now i have to go to court again.there are other issues which will also have to go to court. the law makers of this country have written the laws where they can do anything they want.
Your comments of 8/19 stated “sc exempts total disabled veterans from paying vehicle property tax.” Does the “sc” mean service connected or the state of South Carolina because I’ve never heard about this exemption. Thanks for a response.
I WISH THE COURTS WOULD DO SOMETHING ABOUT A DIVORCED SPOUSE WHO IS REMARRIEDBEING STILL ENTITLED TO A PORTION OF A DISABLED VETS MILITARY RETIREMENT. BUT GUESS THAT WILL NEVER HAPPEN. DANE
FOR MY FELLOW NAM VETS THAT’S STILL HERE,THIS IS VERY GOOD NEWS!
My husband is just barely hanging on. Blue Water Navy from Vietnam. I am encouraging everyone to write to their congressmen encouraging them to co-sponsor HR 2254. It will ensure that all BWN and Airmen will get a disability without having to prove boots on ground ( a bunch of crap) It will take two thirds to get this going and so far only 117 are on board. I don’t understand our politicians.
I will not go into detail about my husband’s condition. I will mention two things. Type 2 diabetes (supposedly a given) and 42 kidney surgeries.
I hope he survives to see if this bill passes. But you know the VA. Their motto is D D D. Delay, Deny, and Die.
Sorry to sound bitter, but my hubby is 10 years younger than me and I never thought I would have to still be working when I was pushing 70 to keep a roof over our heads.
well it is a start but knowing the veterans affairs office and inspector generals office they will still need to be watched that they do things right. because to date nothing has changed. seeing i guess is believing.
I was glad to read the decission about the veterans due process. But when will it trickle down to the regional to speed up the process. I have been waiting for my clain since 6 June 2007. It is very clear that I have the problem They even sent me down town to a private Doctor who is a PHD in the field and also one of the Staff doctor may the comment that I should not be allow in the work force. But as today, There is no decission. Maybe they need to talk to the 1st Lt who I also kill ( in Iraq after a flasback), which is now a Maj.Will be waiting for a answer.
Norm, if you are having problems try to look into stopping by a local Vet Center. They have helped me many times in the past, and evidence you build at the Vet Center goes directly into your claim, and works as a form of evidence in itself. You may find it helps to talk about things with your fellow combat veterans. Almost every Vet Center has a group session once a month. If you have any problems or questions you can email me at gdm@hushmail.com even if its asking about your VA claim. Hang in there.
Someone needs to clarify if this was a class action lawsuit against the VA or a single vet.
I don’t think the Department of Veterans Affairs care about the Due Process Clause of the Fifth Amendment to the United States. . If so why
would the Pentagon give anyone Anthrax vaccine that is a deadly weapon.
Marshall Jackson
Who was your attorney?
send me her name
michealmmsm5151@hotmail.com
This is a step in the right direction. We must keep the pressure on them, before we can see a VA that works as it should. Kudos for that vet.
I have found that VA treates us differently. I am still pushing for a claim I filed in 1998. Still denied, but I found documents where other vets were granted disability for the same claim. I have given this information to my doctor (not VA connected) and showed him the wordings used that got those other vets a disability. He is making his certificate and I will be sending it in soon. When I receive the disability rate, I plan to contact Larry so he can provide the information on his web site.
I am sure I am not the only one with this problem with the VA.
Remember he has just been granted a new hearing less some illegal evidence. They did not say if the evidence was part of the issue or facts concerning the claim. They also did not set a time limit for the hearing to take place which could be years and then go through years of appeal. Why did the court not grant the disiability which is in their power to do as an appeals court instead of remanding the sloppy work to the same office for more sloppy work.
An appeals court can grant benefits while a reviewing court may only remand for a new decision so why are the courts not doing the right thing?
I have beaten the VA at its game, twice for over $100.000.00. I did my own reseach for about 6 months. I then reopen my 1994 denied initial VA Claim in 2001 and by 2004, I beat the VA and in 2005, I beat the VA again.
Here is what I did. I got a copy of all the doctors notes from my VA medical file. Read them and what was appropriate to my claim, I send then a copy of the VA doctors notes.
When the Veteran files a VA claim, the VARO does not look at your VA medical file. It’s a lot easier to denied your VA claim then to look at your VA file.
In my original 1994 VA claim, I did not filed for diabetes. I got backpay for diabetes from 1994.
If anyone out there has the same problem, let me know and I will send you a FREE copy of 21 page NOD for Diabetes. My email address is:
I am just a regular U.S. Marine VietVet who decided that I did not want to wait 10 to 20 years for VA approval.
Semper Fi
Yes … but if you died before that claim is granted, your family will get stiffed. Doesn’t matter that they suffered right along with you, or that, like the lady still working at 70, half a family’s income potential has been taken away, it doesn’ tmatter how many years’ back benefits are due. The family gets one year. Period. Now THAT’S a royal screwing!!! Ask me. I know. My husband — get this — died the day we got the BVA ruling!!! He was still alive when they made the ruling, but he died before they had to actually pay out the SIX YEARS back benefits they owed him. As someone else here said – DDD – DELAY, DENY, DIE!! Until this law is changed, the VA has real incentive to delay. They save money! LOTS of money!! This is one reason they DO delay. Currently it costs them nothing to drag their feet. We all know this. So – if you were in a position where you could screw up at work without any penalty, and SAVE MONEY doing it, wouldn’t you??? This needs to change, too!
Eravette
I type my email address, but it got erase. Anybody knows how to get it in the message.
Semper Fi
This is great for us vets, but don’t count your chickens before they
hatch, as the old saying goes. This will be appealed by the VA all
the way to the U.S. Supreme Court. The vets have no bigger fight
when any war is over than with their own government.
it appears that some one is on this veterans side ,maybe change is own the way. talk about change, i ask that all korea dmz vets look at the new proposed presumptive agent orange exposure posted in the federal register on july 24 2009 located at federal register/ vol.74 no. 141/ friday, july 24, 2009/proposed rules.
This is good news, however, the Courts do not have any jurisdictional power over federal agencies. I am a disabled vet and work on appeals for the DOJ. I battled the VBA for three years, and finally won grants of my disabilities with 70%. I was low-balled by the VBA, and should have received 100%. The fight continues with my NOD, and another 2 or three year wait. With over 21 years of military and corporate legal experience, I was amazed at the incompetence, indifference and apathy of the VBA. If my work performance were the same as the VBA personnel, DOJ would have fired me years ago. Justice delayed, is justice denied.
wow! just found this site. i’ve been waiting 7ys. 5 yrs been on appeal. now have diabetes. applied in june for diabetes. you guys depress me reading all ur comments. delay,deny and die! is that it? is thatr really their plan? sad-huh? what a gov’t!!
Dear Veterans.
ITs not the court that needs the VA ajudicator approval or can be ignored. The court can throw that ajudicator in jail for contempt.
Thats why in 1933 the Rosevelt administraton and congress threw out the title 3 courts for veterans. They wanted allot of nice looking rules for the vets but none of them had any teeth. This court has the teeth to enforce VA law upon the VA itself That is why the VA will appeal the ruling and drag its heals kicking and screaming
Terry
[...] members of the respective Committees. There can be no less an evil than the DVA’s action in Cushman vs Shinseki, (2008-7129), decided in the United States Court of Appeals for the Federal Circuit, or the [...]