Vets Win Landmark Decision: Due Process Guaranteed For First Time

[allan]

VETS WIN LANDMARK DECISION: Due Process Guaranteed for First Time

Posted on August 18, 2009 by gordonduff

VA ALTERS MEDICAL RECORDS

IGNORES EVIDENCE/SMACKED DOWN BY FEDERAL COURT

By Michael Leon STAFF WRITER

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.

SOURCE: http://www.veteranstoday.com/modules.php?n...le&sid=8308

[Wings]

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Keep us posted --and thanks Allan!!!! ~Wings

[knifestuff]

next steps are finding out what it means--CAFC said this was a case of first impression, so now will come the hard work--determining what level of due process is due, both from a procedural and a substantive viewpoint. Its gonna make the VA squirm, for sure. The Federal rules on due process in the criminal world are fairly tight; the civil world is not so straight-forward; I offer Social Security as a classic example.

[vmo]

I suspect the VARO will try to use the old: "were sorry your claim is taking so long, but because of the recent court decision concerning---"due process"---"we are still working on your claim to assure we act in the veterans best interest" or we are "reviewing the review of the reconsideration of the appeal of the most recent denial of the request of the de novo review of the last rating decision resulting from the Board of Veterans Appeals grant of service connection." Huh?? *I think the due process will initially slow down the claims process---then it will speed up processing as the VA fails to find loop holes to use or rocks to hide under. We all just went through "shredder gate"--now the VA can't get away with that. Dang!! Now we even expect them to follow and grant us "due process"? Per chance may be way-way back this is what some honest men have written into our Constitution?? If all these years we have been denied due process, we sure as hell have not been given the "benefit of doubt", EITHER. Some times I get the feeling that I'm hanging on the edge of a cliff by my finger tips and the VA is looking down at me, smiling, (just before they "stomp").

[Pete53]

Why is it I giggle every time I hear the VA say that they are working. The VA reminds me of Maynard C Krebs of the infamous Dobie Gillis TV show.