tdiu Cushman V Shensiki 2009

[john999]

Cushman v Shensiki (2009) was one of the most far reaching claims ever to be appealed beyond the CAVC to the federal court. It established that vets have a property right in their claims. Cushman filed a CUE claim based on the VA's tampering with his medical evidence for TDIU. Feds agreed with him and his lawyer that he had a property right in his claim and was entitled to due process. However, when the smoke cleared after the Federal Court remanded the case back to the CAVC Cushman did not win his CUE. The CAVC said that even after proving the VA tampered with his evidence it was not outcome determinitive. He has TDIU now but he might have had it in 1984 if the VA had not tampered with his evidence. The VA rigged my rating in 1973 and now they are saying the same thing that even though all the available evidence was not before the rater it is not "undebatable" that it would have made a difference. Does the VA debate the number of angels on the head of a pin?

John

[johnjjr]

They will debate the number of fleas on a dog and will search until the dog dies for that specific flea that denies your claim.

[Berta]

John has correctly assessed this decision.It is always worthy of more discussion here. (Both Johns did)

Brief background on Cushman V Shinseki:

Philip Cushman, USMC vet, had severe work problems due to a service connected back injury and the employer found he was unable to continue to do his job.

Prior to the Portland RO getting his TDIU claim, his last VA med rec entry said:

“

is worse + must stop present type of work”

1.http://www.cafc.uscourts.gov/images/stories/opinions-orders/08-7129.pdf

“

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

e in evaluating Mr. Cushman “

2. source Ibid.

The last medical record from the entry above (is worse...etc) had been altered before the RO and the BVA got the claim. The original entry had been done at a DVA outpatient clinic.

SSA meantime denied Cushman's case based on the altered entry,original entered in 1976.

“Mr. Cushman first discovered that there were

re two versions of his medical record

in October of 1997. “

3. Ibid.

Although this started out as a CUE claim, (which I feel did have some merit but not enough to be a valid CUE-my opinion only)) the Federal; Circuit Court decided it as a Due Process claim.

The decision is lengthy but very important to every single claimant:

“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 “

etc ..I cant seem to copy the whole conclusion.

The CAFC link above is the entire case.

I makes me think that ,in the days when Cushman first filed his TDIU claim, VA could say any claim was “not well grounded” and deny .

In my opinion, that past VA MOS mantra denied THOUSANDS veterans and survivors any Due process at all.

But then again we have always had appeal rights.

It took Cushman decades ,but Persistence and in this case, good lawyers too, paid off.

[broncovet]

I think the "downside" of Cushman is that, after the remand, the VA f'd him over again, by saying, "Ok, we fraudulently altered the Veterans documents. However, it would not have made any difference. Claim denied, on remand."

Bottom line is the VA wiggles out again, and can (and will) continue to shred and alter Veterans documents at will.

When VA falsifies or shreds documents, the burden is on the Veteran to PROVE that the shredding or falsification is "out come determinative" and not just "harmless error".

Edited July 3, 2013 by broncovet