COURT RULES FOR VETERAN IN VA
BENEFITS "DUE PROCESS" CASE
"We conclude that such
entitlement to benefits is a property interest protected by the Due
Process Clause of the Fifth Amendment to the United States
by Larry Scott, www.vawatchdog.org
We have a landmark decision from the United States Court of Appeals for
the Federal Circuit which could impact hundreds of thousands of
The Claimant-Appellant, Philip E. Cushman, described it to me this way
in an email:
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 stated:
This case involves an alleged violation of a veteran’s right to due
process under the Fifth Amendment to the United States Constitution,
where the medical record on which his service-connected disability claim
was evaluated contained an improperly altered document. In contending
that a veteran has a protected property interest requiring fair
adjudication of his claim for disability benefits, the Appellant raises
a constitutional issue of first impression for this court. For the
reasons discussed below, we find that a veteran alleging a
service-connected disability has a due process right to fair
adjudication of his claim for benefits. We further find that Mr.
Cushman’s due process rights were violated in this case by the
consideration of tainted medical evidence. We vacate the contrary
decision of the Court of Appeals for Veterans Claims (“Veterans Court”)
and remand the case with instructions for a new hearing.
The Court added:
Veteran’s disability benefits are nondiscretionary, statutorily mandated
benefits. A veteran is entitled to disability benefits upon a showing
that he meets the eligibility requirements set forth in the governing
statutes and regulations. We conclude that such entitlement to benefits
is a property interest protected by the Due Process Clause of the Fifth
Amendment to the United States Constitution.
An attorney who practices veterans' law chimed in:
As you may recall, I have been mumbling for some time that the delays in
the VA system, including at the Veteran's Court, are approaching
"constitutional dimensions." This ruling makes it clear (at least to me)
that the Constitution protects veterans claimants and the failure to
provide due process (i.e., altering documents, shredding documents,
failure to process, etc.) is a constitutional violation.
It is now a matter of how long a delay in processing has to be before VA
violates the constitution, not whether. Find me someone who has not
heard from the VA for 2 years or more and I am prepared to find out the
The same attorney went on to
explain how this could impact many veterans:
The Court's unequivocal statement that Veterans' Benefits are protected
property rights is important because it slams the door on the VA's
defense of last resort that it is a federal agency and no one (not a vet
or a court) can tell it how long to take in doing its job. Now that
excuse is no longer available. the Constitution requires "due process"
and that process is well-established for veterans. It also requires that
the process that is due actually gets done at some point.
With backlogs approaching a million, initial processing times,
http://www.veteransbenefitgroup.com measured in years, and total
appeal times approaching a decade, the Constitution, not VA, becomes the
measure (as it should be) regarding whether VA is providing adequate
"process." Think this is odd or unique? Ever hear of school
desegregation, prison overcrowding, or voter rights? Same deal - the
government(s) would not enforce the rights of the individuals to attend
school, have humane prison conditions, or vote without intimidation. The
federal courts gave the states some time to enforce
Brown v. Board of Education
(ordering desegregated schools) then ordered those who refused to do so
under threat of court order. Can you imagine what would have happened if
an individual seeking admission to a particular school had been waiting
10 years for a decision on his or her admission and filed a lawsuit to
enforce Brown, but the federal court ruled that while 10 years seemed
like a long time, you had to keep things in perspective???? All heck
would have happened, that's what.
Well read the very first substantive decision by the Veterans Court,
Erspamer v. Derwinski.
Mrs. Erspamer filed a petition asking the Veterans Court to make VA
issue a decision on her claim for DIC. She had waited more than 10 YEARS
without VA action. 10 years!!! The Court stated that while "ten years is
an undeniably . . . long time" the court did NOTHING but tell Mrs.
Erspamer that she could renew her request in six months if the VA did
not issue a decision!!! And what happened - NOTHING.
I do not think that this type of "process" will meet constitutional,
rather than VA standards.
This case must also be very sweet for Gordie Erspamer, Mrs. Erspamer's
son, and the attorney in that case, as well as the current PTSD
litigation in California. The attorney who argued the Cushman case is a
member of Gordie's law firm.
In sum, as I see it, veterans now have a means to challenge outrageous
delays, either at the VARO, the Board, or the Court. VA can no longer
just keep pushing everything out until they get around to it. I am sure
VA will fight this to the last man or woman, but somewhere, sometime,
some court is going to find some period of delay crosses the line of due
process into a constitutional violation AND order the VA to do whatever
was supposed to be done. That is the big difference.
I suspect that one of the first targets for a challenge may be the new
process. As I see it, those applying and meeting the eligibility list
are guaranteed the benefit of tuition for the upcoming semester. In
other words a property right protected by the Constitution. Failure of
VA to pay that benefit on time will mean no school unless the school is
willing to take an IOU from VA or the student (unlikely as most schools
are cash-strapped already). No amount of money later can recover the
lost semester. So if VA cannot process the claims on time or will not
pay the tuition up front and review the application later, I see a whole
lot of process coming due on the Secretary in a few weeks.
The entire Court decision makes for some very interesting reading ...
and should be read by any veteran who has an active claim.
The decision is here for viewing or download